Ever since Cardinal Timothy Dolan of New York first registered his opposition to the federal contraception mandate, his cogent argument on behalf of religious freedom has been dismissed by activists advancing "reproductive rights" and by often-credulous media reports that insist the church-state dispute has been effectively resolved.
Now, Cardinal Dolan has had his day in court.
On Dec. 5, he and his supporters received some welcome news, when a federal judge ruled that the New York Archdiocese’s legal challenge to the Health and Human Services’ contraception mandate could move forward.
The decision is the first breakthrough for the growing number of Catholic dioceses and Church-affiliated institutions that have challenged the mandate, alleging that it violates the Free Exercise Clause of the U.S. Constitution and the Religious Freedom Restoration Act.
The federal government had sought to dismiss the archdiocese’s lawsuit, arguing that it was premature because the Obama administration was still working out an accommodation, and thus the impact of the law on religious institutions could not be established until after the August 2013 deadline for compliance for religious institutions.
The archdiocese said it anticipated annual fines approaching $200 million if an acceptable resolution was not forthcoming and that it could not afford to wait.
In a ruling that echoed key concerns repeatedly raised by Cardinal Dolan and other Church leaders, U.S. District Judge Brian Cogan signaled that the plaintiffs’ arguments had merit. Significantly, the decision acknowledged that embattled religious institutions needed clarification now: Too many employees and clients depended on them.
But Judge Cogan also expressed skepticism regarding the government’s stance that the court and the plaintiffs should "trust" the administration to equitably resolve the dispute at a later date.
"[T]he First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action," stated the judge’s ruling. "There is no ‘Trust us; changes are coming’ clause in the Constitution. To the contrary, the Bill of Rights itself and the First Amendment in particular reflect a degree of skepticism towards governmental self-restraint and self-correction."
It further said, "Considering the extraordinary political passion surrounding the coverage mandate from all sides, there is simply no way to predict what, if any, changes to the coverage mandate will be made, even if some policymakers favor certain changes."
Judge Cogan also noted that, while other federal courts had dismissed the lawsuits after receiving the government’s assurance that religious institutions’ concerns would be addressed, the administration still had not formally approved its own proposal, Advance Notice of Proposed Rulemaking (ANPRM).
"This case has been pending for six months. The earliest case challenging the coverage mandate was commenced over a year ago. The ANPRM was announced nearly 10 months ago and entered in the Federal Register over eight months ago. In that time, the departments have had ample opportunity to enact a meaningful change to the coverage mandate. The fact that they have not further suggests the likelihood of injuries to plaintiffs."
Judge Cogan’s cogent observations are sorely needed, and we hope that his ruling will lead other federal courts to take up legal challenges to the mandate.
Catholic employers cannot afford to wait until the mandate takes effect, and it is also past time for the courts to take a more skeptical view of the administration’s promise that all will be well.