Three main points from the brief, via Westword:
- The brief lays out three main complaints about the procedure. The first? Since the form “designates, authorizes, incentivizes, and obligates third parties to provide or arrange contraceptive coverage in connection with the plan,” the brief contends that “once the Little Sisters execute and deliver the Form, the Mandate purports to make it irrevocably part of the plan by forbidding the Little Sisters to even talk to the outside companies that administer their health plan, ‘directly or indirectly,’ to ask them not to provide the coverage.”
- In addition, the brief allows that “regardless of whether the government sincerely believes EBSA Form 700 is morally meaningful, the relevant legal question is whether the Little Sisters do. And on that point, there is no dispute: the Little Sisters cannot execute and deliver the contraceptive coverage form without violating their religious conscience. The government may think the Little Sisters should reason differently about law and morality, but their actual religious beliefs — the beliefs that matter in this case — have led them to conclude that they cannot sign or send the government’s Form.”
- Finally, the government’s so-called “scheme” is said to violate the First Amendment, because it has “exempted a large class of religious organizations based on unfounded guesswork about the likely religious characteristics of different religious organizations. The government has no power to discriminate in this fashion, allowing some religious organizations to survive while crushing others with fines for the identical religious exercise. This violation of the Free Exercise and Establishment Clauses is compounded by a clear violation of the Free Speech Clause: the Mandate both compels the Little Sisters to engage in government-required speech against their will, and prohibits them from engaging in speech they wish to make.”
Another short commentary on what took place just a couple days ago via The Daily Signal:
Some organizations are fighting back against the accommodation because it simply shifts responsibility for purchasing coverage away from the employers, and it is still the employer’s action that triggers the objectionable coverage. This bureaucratic tweak to the accommodation, issued this past August, still does not adequately protect the religious freedom of many charities, schools and other religious organizations.
Writing for the court, Judge Cornelia Pillard found that CUA and Priests for Life failed to show that the accommodation substantially burdens their religious exercise. Instead, Pillard concluded that the only harm was Priests for Life’s feelings of being genuinely “aggrieved by their inability to prevent what other people would do….” Pillard recognized that though the accommodation may violate the challengers’ conscience, it allows the challengers to “wash their hands of any involvement in providing insurance coverage for contraceptive services.”
Essentially the court determined that the accommodation is fine because it doesn’t directly force the groups to violate their conscience.
Yet a regulation can still be a substantial religious burden even if the effect is only indirect.
The U.S. Supreme Court said as much in Thomas v. Review Board over 30 years ago. In this case, a Jehovah’s Witness steelworker was denied unemployment benefits after quitting his job because he was transferred to a part of his company that made weapons. Because of his belief in non-violence, Thomas could not participate in the manufacture of weapons. In siding with Thomas, the Supreme Court noted that “[I]t is not within the judicial function and judicial competence to inquire whether [Thomas] correctly perceived the commands of [his] faith. Courts are not arbiters of scriptural interpretation.” Instead, the Court would defer to a religious believer’s interpretation unless the claim was so bizarre or had a non-religious motivation, elements even the government concedes do not apply to Priests for Life or the Little Sisters of the Poor.
Thus, what Judge Pillard calls “a bit of paperwork” is exactly what Priests for Life find morally wrong.
What may seem trivial to one person may give rise to a serious religious dilemma for another. For example, Orthodox Jews may not flip light switches or press buttons on the Sabbath.
In short, courts should not be in the business of line-drawing when it comes to theological questions. Though the Obama administration won the round in the battle over the abortion-inducing drug mandate before the D.C. Circuit, the fight continues with the Little Sisters of the Poor.