WASHINGTON — The U.S. government has petitioned the Supreme Court to hear an appeal to a legal challenge to the Health and Human Services' contraception mandate filed by Hobby Lobby, a craft-store chain. 

The Sept. 19 announcement marked the latest development in the legal challenges against the federal mandate filed by an estimated 30 for-profit employers. Rulings in several early cases have resulted in split decisions from appeals courts, increasing pressure on the Obama administration to seek a definitive judgment from the high court.

In June, the 10th Circuit ruled in favor of Hobby Lobby, whose owners, the Green family, manage their company according to Christian principles and oppose the mandate on moral grounds.

More recently, the 6th Circuit Court of Appeals decided in favor of the Obama administration in a legal challenge brought by Michigan-based manufacturer Autocam, while the 10th District Court of Appeals ruled in favor of the family-owned Cherry Creek Mortgage Co., Inc., based in Colorado.

The federal government’s decision to petition the high court came just days after Cardinal Timothy Dolan of New York, the president of the U.S. Conference of Catholic Bishops, confirmed in a Sept. 17 letter that  Church leadership would continue to press ahead with legal and legislative remedies to the federal mandate, which requires virtually all private employers to provide co-pay-free contraception, abortion-inducing drugs and sterilization in their health benefits.

During a Sept. 11 press conference at USCCB headquarters in Washington, Cardinal Dolan said that the bishops also were developing plans for a practical response to the mandate. Catholic nonprofits face a January 2014 deadline for compliance with the federal law, and if they can’t obtain a reprieve through the courts, financial penalties could be imposed once their health plans are updated.

The bishops, said Cardinal Dolan, are “talking about different ways that we are able to continue … with the ministries and apostolates that this country cherishes,” while also adhering to Catholic teaching on the sanctity of life. Cardinal Dolan’s Sept. 17 letter noted three key objections to the federal mandate, including the refusal of government regulators to exempt “for-profit businesses run by so many of our faithful in the pews.”

 

Central Question

If the Supreme Court agrees to hear an appeal to the closely watched Hobby Lobby case, oral arguments will revolve around a central question — whether a for-profit corporation, which does not have an identifying religious mission, can actually "exercise religion," said Gerard Bradley, a constitutional scholar at the University of Notre Dame's law school.

“If the answer is No, then these companies would lose. If the answer is Yes, then the cases would be remanded to lower courts, to work out whether there has been a substantial enough burden and whether there is a compelling state interest and least restrictive means,” said Bradley, noting the criteria outlined by the 1993 Religious Freedom Restoration Act (RFRA).

RFRA states: “Government shall not substantially burden a person’s exercise of religion,” unless the state has a compelling interest. In such a case, it will use the least restrictive means possible to advance that interest.

Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School, a leading expert on religious-freedom issues, said that the high court might also choose to hear an appeal to the Conestoga Wood Specialties Corp. case.

In July, the 3rd Circuit Court of Appeals, in a 2-1 decision, ruled that Conestoga, owned by the Hahn family, must comply with the federal mandate.

“Conestoga is distinct from the Hahns; the mandate does not actually require the Hahns to do anything,” stated 3rd Circuit Judge Robert Cowen, in his majority opinion that echoed the administration’s position.

“It is Conestoga that must provide the funds to comply with the mandate — not the Hahns.”

Laycock contended that the “odds are very high that the court will take the Hobby Lobby case, the Conestoga Wood case or both.”

“There is a square split in the circuits between the two decisions, and one court has invalidated part of a major federal program,” Laycock said. “Either of those reasons is usually enough.”

He suggested that if the court takes both cases, “they will probably be argued together on a single day. If it takes only one case, it will hold the other to be decided later, in light of what it does in the first case.”

 

Unpredictable Outcome

Laycock said the outcome — expected by June 2014 — was unpredictable, with  “strong arguments on both sides and ideological pressures on the court.”

For his part, the Virginia law professor has concluded that the mandate constitutes a clear “burden on the owners’ exercise of religion and that Congress clearly meant to protect the for-profit sector. But the government argues otherwise, and the court could go either way,” he said.

Some of that uncertainty reflects debate about whether a larger company can convince the court that it should be protected under RFRA. Legal experts believe that smaller, family-owned companies have a better shot at meeting the legal threshold.

“Hobby Lobby is pretty large, but the one family controls it, and Hobby Lobby has a palpable religious element to its identity,” said Notre Dame’s Bradley. 

“Some of the plaintiffs in these cases are quite small — a hundred or fewer employees.”

 

Religious Employers

For now, experts on constitutional law are weighing Hobby Lobby and Conestoga’s chances of scoring a victory at the high court. Meanwhile, they caution that the outcome may have little to do with how the justices would likely decide legal challenges to the federal mandate filed by Church-affiliated institutions.

“These two cases will tell us little about the religious nonprofit cases. It is far more obvious that the religious nonprofits are exercising religion, although the government will dispute that,” said Laycock.

One wild card is the question of how the federal courts will likely view the administration’s “accommodation” to religious employers that are not exempt from compliance with the mandate. Religious nonprofits, like universities, hospitals and social agencies, will be allowed to opt out of administering or directly paying for services that violate their moral beliefs. However, Cardinal Dolan’s letter repeated the bishops’ consistent objections to a federal law that divides the Church with a “narrow definition of religious employer” and “second-class treatment” of critical Church ministries.

Archbishop William Lori of Baltimore, the bishops’ point man on religious freedom, told the Register that he was encouraged by the news that Hobby Lobby would likely get a hearing before the Supreme Court.

“Cardinal Dolan reaffirmed that the Health and Human Service' mandate really is a burden for conscientious private employers and for our Church ministries,” said Archbishop Lori.

He expressed the hope that cases filed by religious employers would also make their way to the high court.

Said Archbishop Lori, “We remain intent on seeking a judicial remedy. There is a lot of hard work ahead.”

Joan Frawley Desmond is the Register’s senior editor.