Joan Frawley Desmond, is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California..
The U.S. Supreme Court today issued a ruling that vacated a circuit court decision against the University of Notre Dame, as it pursued its lawsuit against the Department of Health and Human Services' contraceptive mandate.
The news media and some opponents of the mandate presented the ruling as another blow to the White House, which was still smarting from the high court's split decision last June that sided with Hobby Lobby, the for-profit family company that claimed the mandate violated its religious freeom.
"Supreme Court Says Obama Admin Can’t Make Notre Dame Obey Pro-Abortion HHS Mandate," read a headline from Life News.
"The justices asked the 7th U.S. Circuit Court of Appeals to reconsider its decision against the South Bend, Indiana-based Roman Catholic university in light of the June 2014 Supreme Court ruling that allowed certain privately owned corporations to seek exemptions from the provision," Reuters reported, noting that the 7th U.S. Circuit Court of Appeals' ruling against Notre Dame pre-dated the Hobby Lobby decision.
But did the justices actually signal that they would likely side with Notre Dame, the Little Sisters of the Poor and other religious nonprofits that oppose the mandate?
The wild card here is that the government has provided an "acccommodation" to these nonprofit plaintiffs that it did not offer Hobby Lobby. Updated last August, the accommodation directs religious plaintiffs to confirm in writing that the law asks them to violate their religious beliefs, and that they cannot comply with it. The plaintiffs have countered that the new proposal does not resolve the isssue, and the law still violates their rights, as guaranetteed under the federal Religious Freedom Restoration Act (RFRA).
To get an update from two legal experts, I contacted Mark Rienzi, who serves as a senior legal counsel for the Becket Fund for Religious Liberty, a public interest group that defended Hobby Lobby and still represents other HHS plaintiffs, including EWTN. The Register is a service of EWTN.
I also reached out to Douglas Laycock a leading scholar on religious freedom issues who previously told me that the White House acccommodation would make it harder for religious nonprofits to win their legal challenge to the mandate.
I asked Rienzo to explain the significance of the Supreme Court's order vacating the 7th U.S. Circuit Court of Appeals' decision. For example, did it direct the circuit court to provide injunctive relief, or something more?
"That doesn't impose an injunction automatically," Rienzi told me. "But it does send a strong signal that the court of appeals decision was wrong. That's a big deal because that decision has been the centerpiece of the government's argument in all the cases since."
I asked if the justices' decision appeared to dismiss the administration's argument that the accommodation had effectively addressed the plaintiffs' RFRA claims?
"I think so -- the Court doesn't spell out its reasoning in an order like this," Rienzi replied. "But the bottom line is this is the fourth time the Supreme Court has considered this mandate (Little Sisters of the Poor, Hobby Lobby, Wheaton College, Notre Dame) and the fourth time the Court has sided with the religious believer and against the government. So the government's attempts to defend the mandate and the accommodation keep losing."
Then I contacted Doug Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School, who, like Rienzi, has represented plaintiffs in landmark free exercise cases before the Supreme Court.
"You have emphasized that the administration's accommodation could result in a ruling against religious plaintiffs. Does today's announcement give you pause?" I asked.
"No," said Laycock. "The nonprofits may eventually win or lose, but today’s order implies nothing about the merits. Whenever they have a cert petition that is in any way connected to a recent decision, It is routine to grant the petition, vacate the judgment, and remand for further consideration in light of the new decision.
"They don’t try to figure out whether the new decision makes any difference; they leave that to the lower court. This is so common that it has an acronym; lawyers refer to it as a gvr," he added.
"The religious nonprofits have now lost in the 3rd, 6th, 7th, and DC Circuits. I would be quite surprised if this leads the 7th Circuit to change its mind."
So the 7th Circuit could still rule against Notre Dame, and today's news offers no guarantee that the high court will side with religious nonprofits.
When the Court considered the merits of Hobby Lobby's legal argument against the mandate, a majority surprised many legal experts by issuing a landmark decision that strongly endorsed free exercise rights for closely held companies. Five justices have signaled their strong support for religous freedom -- even when dealing with a radioactive issue like access to free contraception. Let's pray they do it again.