Future murky for other mandate challenges

In Washington June 30, Hobby Lobby supporters cheer the 5-4 ruling by the Supreme Court in favor of the craft store chain that challenged the Affordable Care Act's mandate that employee health plans include contraceptive coverage. (EPA/Jim Lo Scalzo)
In Washington June 30, Hobby Lobby supporters cheer the 5-4 ruling by the Supreme Court in favor of the craft store chain that challenged the Affordable Care Act's mandate that employee health plans include contraceptive coverage. (EPA/Jim Lo Scalzo)

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When the Supreme Court issued a split decision June 30 narrowly backing the right of for-profit corporations to deny contraception coverage to their employees for religious reasons, many assumed that faith-based nonprofits would have it easy when their own cases eventually reach the high court.

"The death knell is sounding for the HHS mandate," said Lori Windham, an attorney at the Becket Fund for Religious Liberty, which is representing the Little Sisters of the Poor, as well as other religious groups that object to the Health and Human Services Department policy requiring birth control coverage.

Windham noted that in two rulings by lower courts also June 30, several of Becket's faith-based clients received last-minute relief to shield them from complying with the mandate.

"The HHS mandate is on its last legs when it comes to religious nonprofits," Windham said.

Yet many analysts say that in fact what worked for Hobby Lobby -- the national craft store giant owned by the Green family, who are evangelical Christians -- may not necessarily work for the Little Sisters, who operate nursing homes for the poor around the country.

The sisters are the main plaintiff for a range of religious nonprofits and institutions who argue, in cases that paralleled the claims of for-profit businesses, that complying with the Obama administration's mandate to provide free birth control coverage would violate their religious freedom because they object to contraception.

So when those cases reach the Supreme Court, why wouldn't the Little Sisters eventually receive the same treatment, or even greater deference, than a corporation like Hobby Lobby or its Mennonite-owned co-plaintiff, Conestoga Wood Specialties?

The key difference is that the Health and Human Services Department has already offered an accommodation to faith-based nonprofits that allows them to sign a waiver giving a third-party administrator permission to take care of the birth control coverage, with no further involvement by the religious group.

The Little Sisters and others argue that even signing such a waiver entangles them in something they view as morally objectionable. But Justice Samuel Alito, writing for the majority in the 5-4 decision June 30, suggested that the accommodation offered to religious groups could have been a fine solution if provided to for-profit corporations as well.

"That accommodation does not impinge on the plaintiffs' religious beliefs ... and it still serves HHS's stated interests," Alito wrote.

That, in fact, was the same argument made by Hobby Lobby's lawyers in oral arguments before the Supreme Court in March.

Mark Silk, director of the Leonard E. Greenberg Center for the Study of Religion in Public Life at Trinity College, predicted in March that the justices would decide as they did. After the ruling, he said that if the justices follow their logic, the Little Sisters et al. could be in trouble.

The key factors are twofold, Silk explained.

One is that the majority based their decision on the Religious Freedom Restoration Act (RFRA) of 1993, which requires that the state must have a "compelling interest" if it is to infringe on religious rights, and it must use "the least restrictive means" possible.

The majority essentially assumed, but did not rule, that the government did have a compelling interest in providing birth control coverage to women. But the five justices said the government could find a better, less restrictive way to accomplish that goal, like paying outright for the coverage.

Yet Justice Anthony Kennedy, in a concurring opinion, pointedly noted, "The means to reconcile those two priorities are at hand in the existing accommodation."

Kennedy is the second factor clouding prospects for the nuns and others, because he is considered the swing vote on the court, and when the Little Sisters' case comes up, he could swing the other way.

In fact, the decision in Burwell v. Hobby Lobby, Silk predicted, "will prove to be a significant setback for the Catholic bishops and other free exercise maximalists, a good omen for contraception coverage advocates, and a fine result for those interested in a reasonable balance of the interests at hand."

University of Virginia law professor Douglas Laycock, a leading religious freedom expert, agreed that the court's suggestion "that the government's accommodation for nonprofits is a less restrictive means for the for-profits does not bode well for the nonprofits."

"The court specifically does not decide the claims of religious nonprofits who don't even want to send the form claiming the objection," Laycock said. "But I would not be optimistic about that claim."

At Mirror of Justice, a Catholic legal blog, University of St. Thomas law professor Thomas Berg welcomed the ruling but also predicted that the majority opinion and Kennedy's concurrence "imply that some form of the nonprofit accommodation will be held a permissible solution."

And at First Things, a conservative journal of religion and politics, St. John's University law professor Mark Movsesian conceded, "The language here is a bit opaque and may cause trouble in future."

On the other hand, Kim Daniels, a former spokeswoman for the U.S. Conference of Catholic Bishops and an attorney specializing in religious freedom issues, contended that there was "strong language" in the majority opinion supporting the claims of religious nonprofits like the Little Sisters.

Daniels also did not read Kennedy's opinion as undermining that stance.

"I think that worries about Justice Kennedy's opinion are misplaced," Daniels, now a senior adviser to Catholic Voices USA, wrote in an email. "I find it hard to believe that Justice Kennedy would confirm RFRA protection for for-profit corporations, but not for the Little Sisters of the Poor and others like them."

Ira Lupu, George Washington University law school professor emeritus, called the impact of the ruling on the Little Sisters case "completely uncertain" -- a view that was probably more widespread than any claims about what the justices will, or will not, rule when the faith-based nonprofits come before the high court.

A version of this story appeared in the July 18-31, 2014 print issue under the headline: Future murky for other mandate challenges.

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