The cause of religious liberty suffered a defeat recently in the federal appellate court located in the nation’s capital. Whether it is a temporary setback or a reflection of elite opinion turning against the Constitution remains to be seen.
The U.S. Court of Appeals for the District of Columbia refused to rehear as a full court the decision of a three-judge panel that rejected a lawsuit brought by the archbishop of Washington and several Catholic organizations challenging the contraceptive mandate imposed by the department of Health and Human Services. Although numerous cases have been brought across the country successfully challenging the mandate — including Hobby Lobby, which affirmed that private corporations could exercise religious-liberty rights — this case moves the battle to the rights of religious nonprofits.
The case turns on the so-called “opt-out” provision. Under this provision, a nonprofit entity that has religious objections to providing contraceptive coverage as part of its employee health-insurance plan may fill out a form reflecting its objection and submit it to its insurance carrier. The insurance carrier, according to the opinion, must then take action to “accommodate” the objecting nonprofit by, for example, providing separate insurance coverage to those employees who want such coverage. According to the court, the opt-out process is simply about the operation of the law, not about the religious objections to that process.
The court is wrong, but why it is wrong is just as important to understand. The court glides over the fact that the nonprofits have no real choice. If they do not submit the form, the nonprofit must either pay crippling fines or eliminate all health insurance coverage for its employees. Filling out the form, to the plaintiffs, unconscionably permits coverage to which they have religious objections. By failing to recognize that the regulatory structure itself burdens the plaintiffs’ religious liberty, the court failed properly to examine the mandate’s effects.
Further, the court says, inaccurately, that “the dispute we resolved is legal, not religious,” but that is not the case. As the dissenters to the rehearing denial point out, simply because the government assumes that the opt-out process is an “accommodation” does not mean it is one under the Constitution. The government, in other words, should not be in the position of defining what religious persons should tolerate as an “appropriate” infringement on their faith.
The court here recognized the sincerity of the plaintiffs’ religious belief. Because of that recognition, it was then required under the Religious Freedom Restoration Act (RFRA) to scrutinize the government’s justification for substantially burdening that belief. This it did not do. Other courts, in undertaking that analysis, have easily found that the government cannot meet the high standard under RFRA to impose such a requirement on plaintiffs like the ones here. But rather than engage in that analysis, the court instead simply assumes that the opt-out does not violate anyone’s religious beliefs and proceeds from there.
The court, along with others who support the opt-out provision, want to have it both ways. On the one hand, they want to say that the form has no meaning and so cannot really be a “cause” of a religious institution violating its beliefs. On the other hand, in the opinion denying rehearing, the court acknowledges that the form is the catalyst for the insurer to act. Even more ominously, the form serves as a marker for those with religious objections:
“The form … acts as ‘the written equivalent of raising a hand in response to the government’s query as to which religious organizations want to opt out’ and extricates those objectors in a manner consistent with the contraceptive-coverage requirement.”
It is alarming how easily a federal judge can support a system that calls out religious believers to the government; that information can be too easily abused. But beyond that, the “contraceptive coverage requirement” is exactly what the court was called to examine to determine whether it infringed upon religious liberty.
The retreat into legalism and bureaucracy as evidenced by this opinion is itself threatening to become a form of tyranny, as technical requirements burrow their way into the broad freedoms protected by the Constitution.
Catholics may already be compromised but do not yet realize it — because this regulatory sleight of hand can be pursued in many other contexts. The Church, sadly, needs to have a backup plan to preserve its independence because other traditional protection, such as its nonprofit status, may already be at risk, buried in some dark corner of the American administrative state.
With this decision, the court has hidden its judgment about what really burdens the Catholic plaintiffs’ religious beliefs — which is forbidden under RFRA, if not the Constitution itself, as well — inside a discussion of regulatory minutiae. What is lost is the meaning of religious liberty itself.