Is The High Court Poised To Accept Religious Freedom Case?

Little Sisters of the Poor
Timothy A. Clary/AFP/Getty Images

Throughout his visit to the United States, Pope Francis repeated the theme of religious freedom, which he realizes is under severe attack worldwide, and in the country where it should be the safest — the land of the free and the home of the brave.

Catholic institutions in the United States — as well as many other institutions — are battling the Obama Administration in Court to preserve that religious freedom. The “HHS mandate,” even with the so-called accommodations that the Administration has provided, still forces many organizations to violate their conscience and religious beliefs.

During his visit, Pope Francis paid a visit to the Little Sisters of the Poor, who have one of the cases against the HHS mandate. Priests for Life likewise has such a case, and in fact was one of the very first to challenge the mandate in court back in February of 2012. Our case is now pending at the U.S. Supreme Court.

By now, most people are familiar with the Hobby Lobby case where the Supreme Court held that the Department of Health and Human Services could not force families that own businesses to violate their religious faith by requiring them to provide abortion-causing drugs and devices to their employees.  That decision on the “HHS mandate” however, while a victory for religious liberty, only applies to closely-held, for-profit enterprises.

Not-for-profit organizations, including Priests for Life, and hundreds of religious schools and charities are still required by the Obama administration to be complicit in acts that our deeply held beliefs inform us are evil.

This we will not do.

As such, we face a crossroads. Unless the Supreme Court hears Priests for Life’s legal appeal – or that of one of the myriad other groups that have brought suits – and again reigns in the Obama administration, charities across the nation will face the prospect of closing their doors.

Fortunately, a recent appeals court decision makes it more likely that the court will accept our case.

The Eighth Circuit Court of Appeals ruled in mid-September against the administration and for a Christian college and a Christian residential treatment center for those with behavioral and substance abuse problems. The judges unanimously decided that the HHS mandate violates the Religious Freedom Restoration Act (RFRA).

This ruling puts the Eighth Circuit in conflict with other appeals courts — including the Court of Appeals for the D.C. Circuit, which decided against Priests for Life.  And when appeals courts reach conflicting opinions on the same question, the Supreme Court is more likely to accept a case that will settle that difference.

What’s troubling is why the Obama administration is using such iron-fisted tactics in the first place.  If it wants to make abortion-causing drugs and devices available, it could do so without threatening to destroy religious schools, programs for the elderly, and other organizations that are part of the fabric of the social safety net.  It’s as if it’s more important for the President to force church groups to violate our beliefs and submit to his agenda than it is for him to achieve what he says is his goal.

Under RFRA, the government cannot place a “substantial burden” on an individual’s or entity’s religious liberty unless it has a “compelling interest” and it uses the “least restrictive means” of fulfilling that interest.  In the recent victory for religious freedom, the Eighth Circuit said that the government failed this three-pronged test.

For instance, for the HHS mandate to pass legal muster, the government must show that the regulation is the “least restrictive means” it can use to provide the four disputed birth control methods to employees.  The appeals court, however, noted that if the administration wanted, it “could provide subsidies, reimbursements, tax credits, or tax deductions to employees, or that the government could pay for the distribution of contraceptives at community health centers, public clinics, and hospitals with income-based support.”

In short, the government could simply provide the drugs to women directly and end this controversy. Instead, it has chosen to use the heavy hand of government to violate the rights and consciences of those with whom it disagrees.

The Pope has left our country, but the Supreme Court’s nine justices are returning to Washington to make more history in a year of major events. That history begins now.

The first Monday in October officially starts the court’s term.

The justices, however, have had the summer months to weigh which cases they will chose to adjudicate in the coming months. The Solicitor General has stated that Priests for Life’s petition, which has been combined with one filed by the Archdiocese of Washington, D.C., may be the best of the HHS mandate cases for the court to accept. Unlike other cases, our consolidated case covers the full range of legal questions the court would want to address regarding the HHS mandate, and it also covers all the different health coverage arrangements that have given rise to challenges against the mandate, based on the somewhat different situations of various co-plaintiffs.

We hope that the Court sees it that way and accepts the case. We are also praying that, as it did with Hobby Lobby, the court will uphold religious liberty.

If ultimately it does not, we will simply not obey the mandate, and our employees will need to obtain insurance on their own. They will be the first to insist that the ministry to which they give their best efforts every day not betray the very principles that inspire its mission.


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