Mark A. Kellner, Who decides if a law restricts a religious practice? Notre Dame case may provide the answer, Desert National News

Nearly a year after the Supreme Court ruled that a privately held corporation can, on religious grounds, refuse to provide contraceptive health insurance coverage for its employees, the issue of religious exemptions to the Affordable Care Act’s mandates may again be headed for the nation’s top court.
The 7th U.S. Circuit Court of Appeals, in a 2-1 decision, ruled May 19 against a temporary exemption for the University of Notre Dame, a Roman Catholic institution. The school argued that even signing a document saying they object to paying for contraception violates its religious principles.
But Judge Richard Posner, writing for the majority, disagreed.
“Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs,” he said.
Posner isn’t alone in his view. The day after the 7th Circuit’s ruling, a federal appeals panel in Washington issued a similar denial to another religious group, and for the same reason. Legal observers agree the question of whether or not judges should decide whether a given federal regulation imposes a burden on religious practice may well be an issue the high court could again address.
Those same observers are split, however, on how the Supreme Court might rule or even should rule on whether a federal law violates a religious belief or restricts religious practice.
“The real significance” of Posner’s ruling, said Robert W. Tuttle, a law professor at George Washington University who’s written extensively on the subject, “is that it suggests (federal) courts have a continuing role in assessing the substantiality of the burden” on a group’s religious freedom imposed by a given mandate. That standard, he said, is a part of the 1993 Religious Freedom Restoration Act, under which Notre Dame and many other groups have sought to avoid the ACA’s contraception mandate.
Birth control mandate
The Affordable Care Act mandates that employee health plans — except for “religious employers” defined by the agency as “primarily houses of worship” — must offer contraceptive coverage.
The question of what the government can do to require religious institutions that are not houses of worship to cooperate with the contraceptive mandate has spawned a raft of legal challenges in the courts. Of 58 nonprofit organization lawsuits filed so far, The Becket Fund for Religious Liberty noted on its website, 29 injunctions against HHS have been granted, with only six denied, including Notre Dame’s. Eleven other cases have been dismissed on various procedural or other grounds, the group said.
In response to pending legal challenges, the government in June 2013 approved an accommodation that allowed institutions objecting on religious grounds to certify their objections in writing. Once filed, the nonprofit’s insurance company arranges to provide contraceptives without cost to the nonprofit.
But the accommodation didn’t satisfy many religious-affiliated institutions such as Notre Dame.
“What’s required of the university (is that) it has to sign a waiver that triggers (the insurance company action); it brings us into the process,” university spokesman Paul Browne said. “And we don’t want to be in the process at all.”
Some private companies, which couldn’t take advantage of the exemption for nonprofit religious organizations, also objected to the mandate based on the religious beliefs of the employer. The Becket Fund reported that 49 for-profit firms filed lawsuits seeking exemptions from the mandate.
One of the more high-profile employers was Hobby Lobby Stores, Inc., a national arts-and-crafts retail chain, which won a preliminary injunction delaying enforcement of the birth control mandate last year. In that case, the Supreme Court ruled last year that privately held businesses whose owners have religious objections to providing certain forms of contraception they believe would induce abortions can be exempted under the 1993 religious freedom law.
Writing for the majority, Justice Samuel A. Alito said the federal Department of Health and Human Services could try harder to accommodate the religious needs of for-profit firms, like it did for nonprofits. “In order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test,” Alito wrote. “There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to all FDA-approved contraceptives.”
In March, the high court ordered the 7th Circuit to review the Notre Dame case and rule again, citing the Hobby Lobby ruling as a precedent.
A burden or not
Posner, in his majority opinion, said Notre Dame could have used the same approach for which evangelical school Wheaton College won a temporary injunction of its own: accept the option of sending a letter to HHS stating its desire for an exemption, and “undoubtedly the Secretary (of HHS) would agree.”
Posner added, “There is a strong argument that given the government’s legitimate interest in the provision of contraceptive coverage to women without cost to them, notice to the government would strike the proper balance between legitimate governmental and sincere religious interests.”
But in his dissent, 7th Circuit Judge Joel Flaum agreed with the school that the ACA mandate “turns Notre Dame into a conduit for the provision of cost-free contraception.”
Flaum did not address the question of whether a court should or should not accept a group’s determination that a mandate violates their belief. But he did agree the government imposed a legitimate burden on the school if it abided by Catholic teachings against artificial contraception.
The government’s requirement that Notre Dame notify its insurance carriers or HHS would require the school to become “complicit in (the) moral wrong,” of providing contraception, he wrote. “Notre Dame’s only alternative is to endure crippling fines.”
The court’s role
At this point, Notre Dame could again ask the Supreme Court to hear an appeal of its case. Browne said the school’s attorneys are weighing their options.
Tuttle, who said Posner reached a resonable conclusion in the Notre Dame case, said it’s “quite possible” the matter could again reach the high court. “Then it will come down to this question of whether or not the religious organization gets the last word on what is a burden” under the Religious Freedom Restoration Act, he said.
But Eric Rassbach, deputy general counsel at the Becket Fund, has a different interpretation of RFRA. Though not representing Notre Dame in this case, Becket has worked with other nonprofit and for-profit organizations on similar cases, most notably Hobby Lobby.
“We disagree with (Posner’s) statement,” he said. “It is up to Catholic institutions to decide whether doing a particular act violates Catholic beliefs and Jewish institutions to decide whether doing a particular act violates Jewish beliefs. It is emphatically not the province of civil courts to decide how religious law ought to be applied to particular situations.”
The court has come down on both sides in the past 30 years.
Last year, a divided court ruled a government mandate did restrict religious practice. But in 1986, the justices came down against a Native American’s faith-based objection to associating a Social Security number with an application for welfare benefits. In their ruling, the justices affirmed an “absolute right” to freedom of individual belief, but not a similar “absolute right” to freedom of individual conduct when it hampers governmental administration.
Browne said the university wants the HHS to find another way to provide mandated contraceptives without involving religious objectors like Notre Dame.
“We challenged this mandate in the first instance as an infringement on our fundamental right to the free exercise of our Catholic faith,” he explained. “Notre Dame hasn’t said it wants to stop the government from providing contraceptives; we shouldn’t be forced into the process.”

 

Who decides if a law restricts a religious practice_ Notre Dame case may provide the answer _ Deseret News National