Waiting for the Supreme Court to rescue religious freedom
Last Friday, November 1, the Federal appeals court in Washington DC ruled 2-1 that the so-called contraceptive mandate, a regulation under Obama’s Affordable Care Act that requires employers over a certain size to provide insurance for free contraceptives, morning-after pills, and sterilization, most likely violates the Religious Freedom Restoration Act.
The DC Circuit, which is probably the second most influential in the US, after the Supreme Court itself, ruled that the mandate placed a substantial burden on the religious practice of the Gilardi brothers, who as conscientious Catholics are opposed to contraception and who co-own a grocery chain called Freshway Foods. The Court further held that the government had not demonstrated that there was a compelling government interest that was advanced for the regulation in the least religiously-restrictive way possible, as the law requires. The brothers were therefore entitled to a preliminary injunction against the mandate.
This is a matter that will ultimately be decided by the US Supreme Court in the coming year. There is now a “split in the Circuits,” a divergence in how the federal appeals courts have resolved this issue, which necessitates Supreme Court review to resolve the significant issue of federal law. The DC Circuit joins the Tenth Circuit’s Hobby Lobby case, in finding the contraceptive mandate to be a substantial burden on religious practice. (The Hobby Lobby case went further and held that for-profit corporations, and not just individuals and religious corporations, are persons with religious freedom rights under the law.)
The Third and Sixth Circuits, however, ruled that there was no substantial burden and that business corporations do not have religious freedom rights. The Supreme Court will almost certainly take up one of these cases to resolve these issues.
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