Thursday, September 3, 2015

A Sharp Dissent in Little Sisters' Challenge to Contraception Mandate

The full Tenth Circuit today declined to grant an en banc rehearing of the panel's July 2015 ruling that HHS's religious accommodation to the ACA's contraception mandate violated statutory and First Amendment rights of Little Sisters of the Poor. We posted on the panel decision here.

No party called for an en banc rehearing; instead, the court decided sua sponte to consider it. But a majority voted no.

Judge Hartz wrote a dissent, joined by four other judges, arguing that the panel wrongly recast Little Sisters's religious beliefs. In particular, the dissent argued that the panel wrongly interpreted Little Sisters's belief "as being only opposition to facilitating the use and delivery of certain contraceptives to which they object." According to the dissent, "Under this reframing, the plaintiffs have no religious objection to executing the forms; it is just that executing the forms burdens their religious opposition to contraceptives."

Put another way, the panel majority may be saying that it is the court's prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a "derivative" religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty.

Judge Hartz argued that "the doctrine of the panel majority will not long survive," because "[i]t is contrary to all precedent concerning the free exercise of religion."

If you're wondering how, under Judge Hartz's approach, an organization like Little Sisters might tell the government that it has a religious objection to the contraception mandate without violating its own religious beliefs (a question that stumped other courts: how can a religious accommodation itself violate free exercise?), Judge Hartz says that the dissent only goes to the "substantial burden" on religion (and thus triggers strict scrutiny). The certification might still satisfy strict scrutiny--a question that Judge Hartz would send back to the lower court on remand.

https://lawprofessors.typepad.com/conlaw/2015/09/a-sharp-dissent-in-little-sisters-challenge-to-contraception-mandate.html

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