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New HHS ruling said strongest yet on citing religious freedom concerns

Posted By November 15, 2013 | 6:30 pm | National

By Sean Gallagher
Catholic News Service
INDIANAPOLIS (CNS) — Several business owners across the country have filed suit in federal courts seeking relief from the U.S. Department of Health and Human Services mandate that requires nearly all employers to provide abortion-inducing drugs, sterilizations and contraceptives to their employees in their company health plan.
A decision was handed down Nov. 8 by a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago in suits brought by members of the Grote family in Madison, Ind., and the Korte family in Highland, Ill.
According to Richard Garnett, a University of Notre Dame law professor, the decision goes further in exploring various legal questions involved in the mandate suits than in previous decisions involving the mandate.
Judge Diane Sykes wrote the majority opinion in the 2-1 decision.
Garnett, who teaches constitutional law, is an expert on religious liberty questions and has written widely on the topic. Sykes cited two of Garnett’s legal journal articles on religious liberty in her opinion.
She also used an analogy of the government denying the right of a kosher deli to follow Jewish dietary laws as a way to understand that businesses owners can exercise their religious freedom in how they run their businesses.
Now-Archbishop William E. Lori of Baltimore used that analogy to make the same case when testifying in February 2012 before a congressional committee on religious liberty issues related to the HHS mandate. The archbishop, then head of the Diocese of Bridgeport, Conn., is chairman of the bishops’ Ad Hoc Committee for Religious Liberty.
“Judge Sykes is very engaged and widely read,” Garnett told The Criterion, newspaper of the Indianapolis Archdiocese. “It doesn’t surprise me that she’d be somebody who would be looking at legal scholarship and keeping up with other kinds of discussions about (religious liberty).”
The suit filed by the Grote family, and similar ones brought by private business owners who object to the HHS mandate, focus on the Religious Freedom Restoration Act, or RFRA, a federal law enacted in 1993 that codifies the religious freedom enshrined in the First Amendment to the U.S. Constitution.
According to Garnett, RFRA “says that the government shouldn’t burden religious exercise unless it has to. And by ‘has to,’ it means for a good reason and there’s no alternative.” He also noted that the statute requires that when the government can establish valid reasons for burdening religious liberty, it must use the most minimal means possible.
The cases regarding private business owners objecting to the HHS mandate, Garnett said, deal with two questions related to RFRA: Are government regulations related to business corporations affected by RFRA? Is there a “compelling interest” that would justify the government burdening the religious liberty of the business and its owners?
Garnett noted that Sykes made various arguments that business owners such as the Grotes can seek religious freedom protection from RFRA. One of the points she raised, Garnett said, is that RFRA does not explicitly exclude business regulations.
In the second question — whether or not there is a compelling interest in the HHS mandate that would allow the government to substantially burden a business owner’s religious liberty — Sykes makes a more detailed argument than judges in similar cases, Garnett said.
“The other courts haven’t gone as much into detail about those questions, I think it’s fair to say,” Garnett said. “Judge Sykes says there is a burden here. What’s the compelling interest that justifies this burden? The government says that the compelling interest is gender equality in health care.
“And her point is that that’s too broad, that’s too general. You have to focus a little bit more on what the compelling interest is in applying the mandate to these claimants.”
Even if the government can establish a compelling interest, Sykes, according to Garnett, says that the means it uses in the HHS mandate to meet that interest are too wide to make it comply with RFRA.
“She says that (we should) think of all the other ways that are available to the government to pursue these interests,” Garnett said. “The government could have just paid for the coverage itself. It could provide a voucher. It could provide a tax credit. All of these kinds of things.”
Garnett, who served as a clerk for the late Chief Justice of the United States William H. Rehnquist, said that the nine justices of the U.S. Supreme Court will know about the Grote case as they consider whether or not to take up a case over the mandate.
The high court Nov. 26 will consider whether to review one or more lower court rulings over requirements of the health care law.
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Gallagher is a reporter at The Criterion, newspaper of the Indianapolis Archdiocese.