Saturday, January 25, 2014

Contraception and Religious Exemption

     Chief Justice John Roberts was the hero of the Obama Presidency with his influential Constitutional ruling of the Patient Protection and Affordable Care Act.  His argument that the individual mandate is a "tax" will go down in infamy.  For now, however, the Court has dealt a blow to the ACA regarding the religious exemption.  Late on December 31, 2013, a group of nuns in Colorado and Baltimore called the Little Sisters of the Poor appealed to Supreme Court Justice Sonia Sotomayor who handles emergency cases in the Tenth Circuit, to apply for injunctive relief against the financial penalty they would incur for not providing contraception coverage that would go into effect in 2014.  Sotomayor issued the injunction and told the federal government they had three days to respond.  The government asked the Court not to issue an injunction because they have offered substantial exemptions for religious institutions in the statute.
     Sotomayor decided to refer the case to the full Court who yesterday ordered, "If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents [the government] are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit."  The Court was careful to note that, "this order should not be construed as an expression of the Court’s views on the merits."

     The Little Sisters object to simply filling out a form that would request a religious exemption from the administration on the grounds that filling the form out violates their religious views.  In a brief filed by the Little Sisters in response to the government's January 3, 2014 response to Sotomayor's order, they claim, "the Little Sisters and other Applicants cannot execute the form because they cannot deputize a third party to sin on their behalf."  The brief went on to state, "Allowing this to run its course without this Court’s supervision means some religious organizations will be forced into either hypocrisy or financial ruin, while others are protected."

     According to the ACA, if a religious group objects to providing certain care on religious grounds, they may file for an exemption but the care will still be provided to employees of that employer by a third party.  Many of these religious groups such as the Little Sisters and the Christian Brothers Trust, who joined the Little Sisters in their suit, object to providing coverage even if it is by a third party and not by them directly.

     The law has provided avenues to avoid paying the penalty tax for not providing coverage based on religious views.  This suit raises some serious concerns about the future of religious exemptions in our legal framework.  Many groups and organizations have used the Religious Freedom Restoration Act (RFRA) to their advantage to get around certain laws to which they object on religious grounds.  RFRA states the, "Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability."  The exemption to the law is, "Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person, (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 

     The courts use the strict scrutiny or compelling state interest test when examining laws that burden the rights of individuals.  The question the courts examine when applying strict scrutiney is - does the government have a compelling interest for violating one's religious rights?  There is also the Lemon Test, which came out of Lemon v. Kurtzman in 1971.  From Chief Justice Warren Burger's majority opinion, the test states, "a statute must have 'a secular legislative purpose,' it must have principal effects which neither advance nor inhibit religion, and it must not foster 'an excessive government entanglement with religion.'"  The Supreme Court will rule on Little Sisters of the Poor et. al., v. Sebelius the case at a later date but their order simply enjoins the government from issuing a fine against the applicants "based on all of the circumstances of the case" right now.  The Court will hear two cases together this term (Hobby Lobby v. Sebelius and Conestoga Wood Specialties v. Sebelius) examining corporations' rights as individuals in terms of opposing contraceptive coverage to employees based on religious beliefs.

     Religious freedom has the potential to become a dangerous caveat in our legal system.  At an event at the left-leaning Center for American Progress in December, CAP Senior Fellow Bishop Gene Robinson brought up an interesting hypothetical - if he objects to the United States' wars abroad on religious grounds, does that mean he can be exempt from paying taxes that go to fund the wars?  Aside from the fact the Court rarely grants tax-payer suits, his argument raises serious questions about what can be claimed on religious exemption and what cannot.  The government has provided substantial carve-outs for religious exemptions in the ACA and in general.  

     The claim by the Little Sisters legally has weak backing because as stated earlier, if they object to providing coverage, they do not have to.  The Little Sisters are instead inflicting their religious views on others by refusing to fill out the exemption for the provision of third party coverage, just as the applicants in Hobby Lobby v. Sebelius and Conestoga Wood Specialties v. Sebelius are.  When examining these cases from a social and legal standpoint, it is imperative to examine whether or not the remedy to religious exemption unfairly inflicts religious views of the applicants on others. 


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