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In Oklahoma, Another Victory for Religious Liberty (2249)

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06/12/2014 Comments (2)

Another victory for religious liberty, while the nation waits for the Supreme Court to weigh the Health and Human Services’ contraceptive mandate.

A federal judge in Oklahoma has granted an injunction preventing enforcement of the mandate against a number of Catholic institutions, including for-profit businesses and schools. The decision rejected the key arguments being used across the country by those supporting the mandate.

The newly formed Catholic Benefits Association joined with other Catholic entities to bring the case. They formed generally into three groups. The first are those that are not directly subject to the HHS mandate. The Catholic Benefits Association, for example, is composed of Catholic health-care providers who are subject to the mandate, but the association itself is not. The second group are the members of the association, who are faced with severe penalties if they do not comply with the mandate or accept the written "accommodation” that also requires these entities to act contrary to their beliefs. The final group consists of for-profit Catholic entities such as the publisher Good Will Enterprises.

In a careful decision, the court distinguished among the three groups and determined whether each could pursue their claims. Importantly, the court found that the Catholic Benefits Association could bring a claim on behalf of its members even though it was not subject to the mandate.

Other plaintiffs, such as the Archdiocese of Oklahoma City, could not remain plaintiffs because they were not subject to the mandate.

The court next addressed whether HHS was right in arguing that the Catholic nonprofit entities had an out: All they had to do was sign an “accommodation” to avoid the harsh penalties the mandate imposes.

The court saw through this argument. The accommodation is anything but. It still implicates the Catholic institutions in acting in ways they consider in violation of their religious liberty. The fact that they are not the ones directly providing the forbidden coverage is legally irrelevant. The plaintiffs argued that executing the accommodation form would make them “‘the central cog’ in the provision of the contraceptive services to which they religiously object.”

The court stated that the relevant question was not what the HHS thought of the accommodation, but whether the Catholic entities believed accepting the accommodation would run afoul of their religious principles.

As the court rightly noted, it is not part of the judicial function to look into the parties’ religious beliefs or to determine whether they are "reasonable." Rather, the court simply noted that the plaintiffs here all confirmed that they were in accord with Catholic teaching and believed that signing the accommodation would violate that teaching.

Therefore, the HHS could not avoid court review of the mandate by forcing Catholic institutions into signing accommodations. The court, therefore, moved to the main issue.

The plaintiffs brought the case not under the First Amendment, but under a statute called the Religious Freedom Restoration Act (RFRA), which requires the government to show that any laws cannot substantially burden religious liberty. The law must operate to affect religious liberty in the least restrictive means and in furtherance of a compelling governmental interest.

The court, as have other courts across the country, found that plaintiffs showed that at a trial they would likely prevail on a RFRA claim. Why? Because, should the HHS mandate be imposed on them, they would be substantially burdened in the exercise of their rights; indeed, the imposition of fines would destroy economically certain Catholic Benefits Association members.

At the same time, the court noted that the mandate grandfathers in employers who employ millions of employees, exempting them from the mandate. The harm in not enforcing the mandate cannot, the court reasoned, be more than the clear harm to these Catholic institutions in being forced to either comply or face penalties. And relying on the Hobby Lobby case — which is now on appeal to the Supreme Court — the court found that the government could not establish that it had a compelling government interest in imposing the mandate at this time. The Hobby Lobby court had found that the government’s proposed interests, such as “health” or “equality,” were too vague to withstand challenge.

In ruling largely for the plaintiffs, the court noted that almost every case has decided in favor of nonprofit institutions to protect them from the harshness of the mandate. This case also adds support for a core ruling in Hobby Lobby, that even for-profit institutions to which the mandate would apply and which are not eligible for the accommodation may also receive protection under RFRA.

As we await a decision from the Supreme Court, more religious entities are protected in the meantime, and the court has another well-reasoned decision to consider in support of religious liberty.

Gerald J. Russello is editor of The University Bookman.

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