The HHS Mandate Isn’t a ‘Substantial Burden’ to Religious Liberty? | American Center for Law and Justice
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Substantial Burden to Religious Liberty

By David French1349209105000

Last March, I reported that my colleagues at the ACLJ filed the first lawsuit by a for-profit business challenging Obama’s HHS mandate. The suit, brought by Frank R. O’Brien and O’Brien Industrial Holdings, centered around a fundamental claim: Mr. O’Brien — a Catholic — “wishes to conduct his business in a manner that does not violate the principles of his religious faith.”

On Friday afternoon, however, the United States District Court for the Eastern District of Missouri granted the Obama administration’s motion to dismiss the case, holding that the mandate was not a “substantial burden” on Mr. O’Brien’s religious liberty. The court found there was no significant difference between an employer paying a salary that the employee might use to pay for objectionable items and requiring the employer to pay for those items directly.  

We believe, of course, that this reasoning is fundamentally flawed. Employees’ consciences are implicated by the items they purchase with their own money (the employer has no hold on funds once paid in salary); while employers’ consciences are implicated by the items they purchase with company funds. Further, the Obama administration has itself noted the burden on employer religious rights by carving out its own (unfortunately weak) religious exemption.

Wasting no time, O’Brien Industrial Holdings filed its appeal to the Eighth Circuit earlier this afternoon. As my colleague Frank Manion noted (paraphrasing Churchill): “This is not the end. Nor is it the beginning of the end. But it is the end of the beginning. The case moves on. The challenge continues.”

This article is crossposted at National Review Online.

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