Religious schools, seminary take next step in Obamacare fight

Two religious universities and a seminary have filed a petition for a writ of certiorari to the U.S. Supreme Court.

The petition, which the religious institutions’ legal counsel announced in a press release, is the next step in the institutions’ challenge to the Obama administration’s contraceptive mandate.

As Campus Reform previously reported, Houston Baptist University, East Texas Baptist University, and Westminster Seminary (located in Pennsylvania) are challenging a so-called “accommodation” offered by the Obama administration which requires the universities to act as a sort of “halfway house” between the Department of Health and Human Services and the insurance company.

The religious institutions previously argued before a panel of judges for the U.S. Fifth Circuit Court of Appeals that the accommodation required them to “facilitate access” to the contraceptives and abortifacients, something their faith does not allow them to do. The three judge panel rejected that argument. It is this decision from the Fifth Circuit that the religious institutions are appealing to the Supreme Court.

The religious institutions are represented by the Becket Fund for Religious Liberty*—the same firm that represented Hobby Lobby in Burwell v. Hobby Lobby, a 2014 Supreme Court victory for the store—and former U.S. Solicitor General Paul Clement. The brief filed on behalf of the institutions argues that the Fifth Circuit’s decision “plainly conflicts with Hobby Lobby.”

Both Hobby Lobby and this case have been argued under the 1993 Religious Freedom Restoration Act (RFRA), which was co-sponsored by Obamacare champion Nancy Pelosi (D-CA), among others.

RFRA provides a balancing test for the court to decide cases: the government cannot substantially burden a person’s religious practices unless it has a compelling interest in doing so, and uses the least restrictive means in doing so.

In Hobby Lobby, the Supreme Court held that the government had not satisfied the “least restrictive means” portion of the RFRA test. This case, however, has centered on the “substantial burden” portion of the RFRA test; the Fifth Circuit panel ruled that the “accommodation” offered to the religious institutions did not constitute a “substantial burden.” Specifically, the panel ruled that it—not the religious institutions—gets to decide “whether or not “the challenged law pressure[s the appellants] to modify that [religious] exercise.”

The Supreme Court petition filed by the institutions, however, argues that “[t]his Court has already considered this contraception mandate and concluded that it imposes a substantial burden on religious exercise and violates the Religious Freedom Restoration Act (RFRA).”

The petition goes on to blast the Fifth Circuit’s decision as “fundamentally misguided,” arguing that “[i]t is inevitable that this Court will need to address this issue on the merits. It should do so in time to ensure that petitioners’ rights to religious exercise are not sacrificed to a fundamentally misguided decision about what constitutes a substantial burden and what constitutes the proper role for an Article III court in evaluating sincere religious beliefs.”

According to a press release from the Becket Fund Wednesday, the religious institutions’ decision to appeal makes it “highly likely that the Court will decide whether religious universities will be required to provide contraceptive coverage in violation of their faith in the upcoming term.”

*Full disclosure: the author is directly related to the founder of the Becket Fund and has interned for them in the past.

Follow the author of this article on Twitter: @peterjhasson