Thanks to Monday's action by the Supreme Court, it is more important than ever to realize that Zubik vs. Burwell, a challenge to the Affordable Care Act’s mandate on contraception, is a complex mix of seven cases, to be argued, again, in four Courts of Appeals, and involving 37 petitioners.
Though we all oppose the HHS mandate for essentially the same reasons, nevertheless, there are important differences between the cases, including the legal structures of the groups—in fact, some petitioners are individuals, including myself – the type of "preventive services" to which they object, and the way they provide insurance.
The degrees to which our respective cases and courts argued or reached conclusions on three key points of the case are also important. Those three points are: Whether the HHS mandate poses a substantial burden on religion; whether the government has a compelling interest to pursue this mandate, and whether the government, in order to pursue that interest, is utilizing the least restrictive means necessary to accomplish its goals without infringing on our right to practice our religion.
The variety of the cases and plaintiffs matters because the Supreme Court has called the four lower courts from which they came – Third, Fifth, Tenth and D.C. Circuit - to take them up again. Whether there will be a unified outcome, or more division among the courts, is now an open question once again, as each of these four courts, in the unique circumstances that their cases and petitioners present, take up the arguments again. Now there is additional information provided in the briefings the Supreme Court requested from the petitioners and from the government after our March 23 oral arguments.
Catholic priests (Priests for Life) and nuns (Little Sisters of the Poor) are some of those who are suing. But other petitioners include Baptist and non-denominational Christian universities in Texas and Oklahoma, a Presbyterian college in Pennsylvania, Catholic Charities in Washington, D.C., Pittsburgh, and Erie, Pennsylvania, and numerous religious high schools.
Then there’s Reaching Souls International, a non-denominational Christian group that comes to the aid of African children left orphaned by civil war, HIV/AIDS, and malaria. Reaching Souls bases its work on the biblical definition of “religion that is pure and undefiled before God” – that is, “to visit orphans and widows in their affliction.”
And there’s AWESOME —Assistance With Education, Shelter, Organization, Money management, and Employment – a program run by the Prince of Peace Center in Farrell, Pennsylvania, that helps people achieve independence.
Southern Nazarene University boasts a winning NCAA Division 2 basketball team, a 2,000-strong student body majoring in everything from business to theology, and an inviolable belief in the sanctity of life. The university is not opposed to contraception but does oppose the mandate’s demand that the school provide morning-after contraception; ella, a drug that can be taken up to five days after unprotected sex, and two types of intrauterine devices that prevent an embryo from implanting in the womb.
“We do provide contraception for our employees,” Southern Nazarene President Dr. Gresham told Priests for Life. “We don’t provide pregnancy-ending drugs or devices.”
A look at the friend-of-the-court briefs filed in support of the petitioners affords an even better understanding of how seriously religious liberty is threatened by the HHS mandate. Briefs were filed by World Vision; the Union of Orthodox Jewish Congregations of America; the National Jewish Coalition on Law and Public Affairs; the Church of Jesus Christ of Latter Day Saints; the International Society for Krishna Consciousness; the Orthodox Church in America; the American Islamic Conference and the Lutheran Church – Missouri Synod.
Likely without meaning to, the Obama administration has brought together a diverse group of people representing a wide array of religious beliefs, all united by the proposition that the government should not be instructing us in our faiths.
We do not believe a federal bureaucrat should be telling us what is and what is not allowed by our churches’ teachings. Now we need four Courts of Appeal to agree, or all of us will end up back at the Supreme Court—a court whose ideological makeup is dependent on this year’s presidential election.