The Supreme Court announced today what many have been waiting to hear since the Court handed down its decision in the Hobby Lobby case. It will decide whether the federal government can force a faith-based ministry to comply with the HHS Mandate by requiring it, over and against its religious convictions, to sign a document that authorizes the provision of abortion-inducing drugs. In other words, the Court will decide whether the administration’s bogus “accommodation” scheme for religious non-profits is legal.
The Court has chosen to review seven different cases challenging the HHS Mandate and the so-called “accommodation.” Among these cases is one involving the Little Sisters of the Poor, on whose behalf the ACLJ filed an amicus brief a few months ago. The cases have been consolidated into one case, which will most likely be titled, Zubik v. Burwell, the first case named in today’s order.
A critical issue in all seven of these cases turns on the words of the Religious Freedom Restoration Act (“Government shall not substantially burden a person’s exercise of religion”) and whether the Mandate and its “accommodation” impose a substantial burden on the religious exercise of ministries like the Little Sisters.
Many pages will be spent by the parties and friends of the Court in arguing how the Court should ultimately resolve this issue, but when one cuts to the chase, the answer is decidedly clear.
Where a law requires one to take an action that one believes to be sinful, and the law imposes a significant penalty for failing to take that action, then that law imposes a substantial burden on religious exercise. It’s really that straightforward. Numerous Supreme Court decisions, including Hobby Lobby, hold that when the government applies significant and coercive pressure on you to violate your religious beliefs, the government has to justify the substantial burden it has imposed.
Here, the government has given religious ministries, like the Little Sisters, three choices: (1) comply directly with the HHS Mandate by paying for the abortifacients themselves; or (2) sign a form that will make an insurance provider pay for and provide the abortifacients; or (3) pay an enormous financial penalty for failing to do either (1) or (2).
Because the Little Sisters, for example, cannot do (1) or (2) based on their own theological judgment and moral judgments, the governmental pressure applied to the Little Sisters to violate their beliefs is not just obvious, it is substantial.
The government, however, wants to complicate the issue with talk about “de minimis” intrusions on faith. What’s so “substantial,” the government asks, about simply signing a document that allegedly accommodates the ministry’s objection to directly paying for the abortifacients itself?
As one federal court of appeals judge has written:
This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative? . . . I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs).
In Hobby Lobby, the Supreme Court was clear that the substantial burden inquiry considers whether a regulation “demands that [religious practitioners] engage in conduct that seriously violates their religious beliefs,” and whether the consequences of not obeying that regulatory command are substantial. (The Court noted that the penalties for failing to comply with the Mandate are “surely substantial.”)
Thus, in this case, the answer to the question of whether the Mandate and accommodation impose a substantial burden is clear: because groups like the Little Sisters believe that executing a document required by the government violates their beliefs with respect to abortion, and failure to sign that document pursuant to these beliefs will require them to pay financially ruinous fines, the burden can be described as nothing but substantial.
And because of this substantial burden, the Mandate must satisfy what is called “strict scrutiny” -- the toughest test in constitutional law for the government to pass.
In order for the government to pass this test, it must show, in part, that it has used the least restrictive means necessary to advance its goals: here, the provision of abortion-inducing drugs to employees.
As the Supreme Court already held in Hobby Lobby, addressing the very same federal regulation in this case, “the most straightforward way” for the government to ensure that women have access to free contraceptive services “would be for the Government to assume the cost” of these drugs itself. “This,” the Court said, “would certainly be less restrictive of the plaintiffs’ religious liberty.”
In Korte v. Sebelius, a challenge to the Mandate successfully handled by the ACLJ, the court of appeals observed that “there are many ways to increase access to free contraception without doing damage to the religious-liberty rights of conscientious objectors . . . The government can provide a ‘public option’ for contraception insurance; it can give tax incentives to contraception suppliers to provide these medications and services at no cost to consumers; it can give tax incentives to consumers of contraception and sterilization services.”
In short, as the Supreme Court noted in a religious freedom case from last term: “if a less restrictive means is available for the Government to achieve its goals, the Government must use it.” And because the government hasn’t used the least restrictive means to further the goals of the Mandate, the government should lose.
Over three years ago, when President Obama announced the first of many attempts by the administration to stem the outrage over the HHS mandate, he acknowledged that “local churches” often do “more good for a community than a government program ever could, so I know how important the work that faith-based organizations do and how much impact they can have in their communities.”
If that is true -- and there can be no doubt that it is -- why does the administration continue to attack the religious lifeblood of these faith-based ministries? The government’s position with respect to these ministries is shameful: provide your charitable services, but don’t do it according to your religious commitments; do it according to the government’s abortion ideology.
Almost two years ago to the day, the Supreme Court agreed to review the Hobby Lobby and Conestoga Wood cases. Seven months later, the Court ruled squarely in favor of religious liberty and against governmental attempts to force religious business owners to act contrary to their conscience.
How the Court eventually rules in the cases announced today remains to be seen. No matter how it rules, however, the decision will have immediate consequences for religious freedom in this country. It will not only directly impact the ability of faith-based ministries to carry out their religious and charitable activities to those in need, it will go far in defining our nation’s legal and religious culture. Will we be a country where religious liberties flourish and conscience is respected or a place where religious beliefs must take a back seat to government programs and projects? This is a critical question for our nation’s future.
We will keep you posted on these cases every step of the way as we prepare a critical amicus brief to continue defending the First Amendment and religious liberty.
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