From the ncregister.com – The cause of religious liberty suffered a defeat recently in the federal appellate court located in the nation’s capital. Whether it is a temporary setback or a reflection of elite opinion turning against the Constitution remains to be seen.
The U.S. Court of Appeals for the District of Columbia refused to rehear as a full court the decision of a three-judge panel that rejected a lawsuit brought by the archbishop of Washington and several Catholic organizations challenging the contraceptive mandate imposed by the department of Health and Human Services. Although numerous cases have been brought across the country successfully challenging the mandate — including Hobby Lobby, which affirmed that private corporations could exercise religious-liberty rights — this case moves the battle to the rights of religious nonprofits.
The case turns on the so-called “opt-out” provision. Under this provision, a nonprofit entity that has religious objections to providing contraceptive coverage as part of its employee health-insurance plan may fill out a form reflecting its objection and submit it to its insurance carrier. The insurance carrier, according to the opinion, must then take action to “accommodate” the objecting nonprofit by, for example, providing separate insurance coverage to those employees who want such coverage. According to the court, the opt-out process is simply about the operation of the law, not about the religious objections to that process.
The court is wrong, but why it is wrong is just as important to understand. The court glides over the fact that the nonprofits have no real choice. If they do not submit the form, the nonprofit must either pay crippling fines or eliminate all health-insurance coverage for its employees. Filling out the form, to the plaintiffs, unconscionably permits coverage to which they have religious objections. By failing to recognize that the regulatory structure itself burdens the plaintiffs’ religious liberty, the court failed properly to examine the mandate’s effects.
Further, the court says, inaccurately, that “the dispute we resolved is legal, not religious,” but that is not the case. As the dissenters to the rehearing denial point out, simply because the government assumes that the opt-out process is an “accommodation” does not mean it is one under the Constitution. The government, in other words, should not be in the position of defining what religious persons should tolerate as an “appropriate” infringement on their faith.