The independent six
Meet the Democrat-appointed judges who ruled in favor of religious nonprofits challenging Obamacare’s contraceptive mandate
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If you have to go to jury duty, you probably can’t beat U.S. District Judge Mark W. Bennett’s Iowa courtroom. For one thing, Bennett bakes cookies for jurors on cases lasting more than four days. He has also written a 50-page “juror bill of rights” that advocates more stretch breaks, simpler proceedings, and cup holders, among other things.
Bennett follows an unusual policy for the criminals he sentences, too: He travels to visit them in prison. “I like to encourage those making progress, and to encourage those that haven’t yet made a personal commitment to improving their education and skill set—to do so,” he told me. “It’s the single most important key to staying out.”
The Bill Clinton appointee stands out for at least one other reason. He is one of a handful of district judges appointed by Democratic presidents who ruled in favor of challengers to President Obama’s contraceptive mandate.
Most of the American public knows about the many examples of “conservative” judges who set liberal precedents. Justice Anthony Kennedy, who wrote the decision forcing states to accept gay marriage, and retired Justice John Paul Stevens, who became known as the “liberal lion” of the Supreme Court, were both Republican appointees. Few know about the six Democrat-appointed district level judges who, on the politically charged topic of contraceptives and abortifacients, decided their cases on the merits rather than perhaps their personal political preferences.
LOWER COURTS ARE MORE IMPORTANT than some may realize. The Supreme Court hears about 80 cases a year. Lower federal courts hear tens of thousands of cases a year. The makeup of the highest court is hugely significant for precedent-setting rulings, but lower federal courts—the district and circuit courts—decide most matters.
Now that the Supreme Court has only eight members, it is finding ways to send cases back to the lower courts—as happened with the Little Sisters of the Poor case, officially known as Zubik v. Burwell, last month.
Within the circuit courts, most of the 56 cases from religious nonprofits challenging Obamacare’s contraceptive and abortifacient mandate fell along party lines. All of the circuit court judges appointed by Democratic presidents voted against the nonprofits. All of the votes in favor of the nonprofits came from Republican-appointed judges.
Meanwhile in the district courts, the level below circuit courts, Democrat-appointed judges like Bennett issued more diverse rulings over the last few years. Some of the six Democrat-appointed judges who opposed the mandate did not issue rulings as decisively in favor of religious freedom as others, but they nevertheless blocked the Obama administration from enforcing penalties against the nonprofits opposed to participation in contraceptive coverage.
Two of the judges were Obama appointees. Three of the six serve in the Midwest, two serve in Florida, and one in Washington, D.C. Federal district judges, who often handle horrific criminal cases, try to keep a low profile and reveal as few personal details as possible. And lawyers who have argued cases before the judges don’t like to discuss how the judges operate because they may face the judge again. Little public information exists about most of the six judges, beyond the legal documents in their cases.
Bennett, who granted an injunction to Dordt College and Cornerstone University in 2014, is an exception. The Iowa judge is more open than most to granting interviews, though he said he couldn’t talk about this particular case because it is ongoing.
But he told me: “I approached the Dordt litigation with the same commitment to apply the law as best I am able in light of controlling or influential precedent regardless of any personal views I may have on an issue. That is the essence of what judges strive to do.”
Last summer Bennett assumed senior status as a judge—which is like announcing your retirement without stopping your work. In February the Senate unanimously confirmed Obama nominee Leonard T. Strand to fill the officially vacant spot. But Bennett still serves as a judge, helping with the court’s heavy caseload. (Bennett’s court has the sixth-heaviest criminal caseload per judge of the country’s 94 district courts.)
‘I approached the Dordt litigation with the same commitment to apply the law as best I am able in light of controlling or influential precedent regardless of any personal views I may have on an issue. That is the essence of what judges strive to do.’ —Mark W. Bennett
Carole Bos, whose law firm Bos & Glazier worked on the Dordt College case before Bennett, said the judge is known as a hard worker who does careful research and writes explanatory opinions.
“He views each case on its own merits,” Bos said in an email. “It is refreshing, frankly, that he does so without regard to whether he was appointed by a Democratic or Republican administration. It is the job of a judge to be fair and impartial. That is particularly important when the issue is high-profile and politically charged. In our case, Judge Bennett not only followed the law, his decision was upheld by the 8th Circuit Court of Appeals.”
Judge John E. Steele, a Clinton appointee who serves in Florida, held a 2½-hour hearing on the HHS mandate in January 2015–a lengthy argument for these kinds of cases. Afterward, Steele granted an injunction to the group of nonprofits including The Christian and Missionary Alliance.
Using the Religious Freedom Restoration Act (RFRA) test, Steele ruled that the mandate was a “substantial burden” on the plaintiffs’ religious exercise, and that the government’s “accommodation” for nonprofits was not the “least restrictive means” of achieving its objective. Steele thought nonprofits could notify the government of their objection, but that they should not have to provide their insurance information to the government—as is required under the mandate for objecting nonprofits.
The federal government’s “accommodation” for nonprofits under the mandate is complex, addressing a variety of insurance situations. In some circuit-level hearings the judges didn’t understand how the religious accommodation worked. But Steele’s extensive hearing revealed he had done his homework.
Judge Jon E. DeGuilio, an Obama appointee in Indiana, ruled for nonprofits twice, granting preliminary injunctions to Grace Schools, Biola University, and the Diocese of Fort Wayne, among others. DeGuilio received his undergraduate education at the University of Notre Dame, and worked as a prosecutor as well as a public defender, a rare combination. His ruling for Biola showed an understanding of the religious nonprofits’ situation: The government had not granted them the full exemption from the mandate that churches received even though they “share the same legitimate claim to the free exercise of religion as those exempted as ‘religious employers,’” he wrote.
Judge James S. Moody Jr., a Clinton appointee in Florida, granted injunctions to Ave Maria University and Ave Maria School of Law. He assumed senior status in 2014. Judge John A. Ross, an Obama appointee serving in Missouri, granted an injunction to the Archdiocese of St. Louis and Catholic Charities of St. Louis. “This court cannot see how the mandate is the least restrictive means to further the government’s compelling interests,” Ross wrote in his ruling, and pointed to several alternatives like the government providing direct coverage itself or using grants or tax credits. Those kinds of alternatives will be under discussion as the nonprofit cases move forward in the circuit courts.
Judge Amy Berman Jackson, an Obama appointee, denied injunctions to some nonprofits on this issue, but granted an injunction to Thomas Aquinas College, a self-insured organization. The self-insured organizations also seemed to receive a pass at the Supreme Court, so she correctly anticipated that.
Jackson also ruled in favor of a Sikh college student who wanted to join the U.S. Army without shaving his beard or removing his turban, a case the Becket Fund for Religious Liberty handled. The Army had refused to let him apply for a spot in the Reserve Officers’ Training Corps. Jackson ruled that the Army had violated the Religious Freedom Restoration Act, and that the student deserved a religious accommodation—as others had received exemptions to the grooming policy.
ONE SOLE DEMOCRAT-APPOINTED appellate judge—Diana E. Murphy on the 8th U.S. Circuit Court of Appeals—voted in favor of an individual family challenging the HHS mandate on religious grounds, the Wielands. Murphy is a Clinton appointee.
A Republican-appointed judge—in the tradition of Kennedy and Stevens—began the cascade of bad circuit court rulings for the nonprofits. The flashy 7th Circuit Judge Richard A. Posner penned the court’s ruling against the University of Notre Dame, the sole circuit-level ruling with a deciding vote from a Republican-appointed judge. Greg Baylor, an attorney at the Alliance Defending Freedom who worked on several cases challenging the mandate, thought the 7th Circuit ruling was decisive.
“In the wake of the Hobby Lobby decision, the outcome of the nonprofit cases should’ve been clear. The plaintiffs should’ve prevailed,” Baylor said. The government, he explained, was using the same arguments in the nonprofit cases that the Supreme Court rejected in Hobby Lobby. The 7th Circuit decision “shifted the momentum,” he said. “Circuit courts like to agree with each other whenever possible. That’s not a ‘blue versus red’ story so much. There was the momentum shift and it got harder and harder to buck the trend.”
The nonprofit challenges are now going back to the circuit courts that largely ruled against them, but with an admonishment from the Supreme Court that the government and nonprofits work out a deal. The nonprofits view that unusual action as a victory because the high court vacated the lower rulings that were against them, and ordered the government not to fine them while the cases continue.
Going before the appellate courts again, most of these nonprofit plaintiffs are awaiting other judges willing to “buck the trend.”