Religious non-profits ready their arguments

WASHINGTON—Four years of lawsuits from religious nonprofit groups culminate in a Supreme Court case Wednesday testing the contraceptive and abortifacient mandate of Obamacare, which the U.S. Department of Health and Human Services announced in 2010.

Catholic, Protestant, Muslim, Hindu, and Jewish organizations filed mountains of amicus briefs in the Little Sisters of the Poor case, officially known as Zubik v. Burwell, arguing the issue before the court is bigger than contraceptives and abortifacients. A few of the briefs help clarify the Little Sisters’ case and its religious freedom implications.

In addition to the Little Sisters (nuns who run nursing homes for the elderly poor), the seven consolidated cases represent Catholic dioceses, Priests for Life, Guidestone Financial Resources, and several religious colleges. Five of the universities in the case—East Texas Baptist University, Geneva College, Houston Baptist University, Oklahoma Baptist University, and Southern Nazarene University—are members of the Council for Christian Colleges and Universities, which also filed a brief supporting the schools.

Many religious groups and denominations filed amicus briefs in the case on the side of Little Sisters (though churches are entirely exempt from the Obamacare mandate): the Lutheran Church–Missouri Synod, the Assemblies of God, the Church of God in Christ, the Southern Baptist Convention, the Church of Jesus Christ of Latter-day Saints, the Seventh-day Adventist Church, Orthodox Jewish rabbis, the American Islamic Conference, and the Orthodox Church in America, among others.

One brief from several minority religious groups—the Church of the Lukumi Babalu Aye, the International Society for Krishna Consciousness, the Islamic Center of Murfreesboro (Tenn.), and members of the Lipan Apache Tribe—emphasizes the impact the case would have on minority religions in particular. Each of the groups has dealt with cases of religious accommodation.

“That four federal appellate courts would so openly second-guess—and badly misconstrue—the religious contours of mainstream Christian doctrine is bad enough,” the groups note, referencing circuit court rulings against the nonprofits on the grounds that the mandate was not a “substantial burden” on their beliefs. “If government actors have carte blanche to re-examine the veracity of religious beliefs, the rights of adherents to minority religions will be in even greater peril.”

The brief continues: “Petitioners are Catholic and Protestant Christians whose co-religionists include many judges at every level of the federal judiciary and whose teachings are otherwise relatively familiar among the cognoscenti. They have plenty to fear from the lower courts’ improper analysis. But whatever fears they may have are amplified for adherents of minority religions like amici. The tragic irony of the special risk faced by minority religions is that Congress passed RFRA [the Religious Freedom Restoration Act] precisely to protect minority religious practices.”

The brief concludes, “When courts do not understand a religious practice, they are more likely to undervalue the substantiality of burdens placed on that practice.”

Another brief from a number of faith-based organizations, including Catholic Relief Services and World Vision, enumerates the irreplaceable work faith-based groups do in the United States and around the world. The groups argue the mandate—or any conscience burden the government imposes on similar grounds as the mandate—could threaten that continuing work.

On that theme, one particularly moving brief comes from residents and relatives of residents at the Little Sisters nursing homes who want the Little Sisters’ work to continue unimpeded. Nonprofits that do not comply with the mandate face massive fines. It is less expensive to drop insurance altogether than to pay fines for not having contraceptives.

“They will keep you alive ten years longer than anyplace else because they love you,” said Carl W. Bergquist, a nine-year resident in a Little Sisters’ home, in the brief.

“My mother has dementia,” said Father William Spacek. “She was neglected and abused at several nursing homes. … [The Sisters] take their time, they’re concerned, they talk to her. She used to be neglected for hours. Now if I push the button they are here within 5 minutes. They got her to sing a Christmas carol yesterday.”

“The ultimate [service] of the Little Sisters is to sit with the dying,” said resident Carol Hassell in the brief. “They sit with them around the clock. No one dies alone here.”

The brief concludes: “This court has the opportunity in this case to see that, at least this once, good deeds go unpunished. The decision of the lower courts should be reversed.”

One important brief got into the headier legal arguments the court will consider. The National Association of Evangelicals—along with the Mormon church, the Assemblies of God, a Catholic order, and Colorado Christian University—makes a complex but clear argument about the “third party harm” a religious exemption to the mandate would cause to female employees. That was a concern of some of the justices in the Hobby Lobby case about for-profit businesses. The groups in the brief lay out a history of Supreme Court rulings and say third-party considerations have not been enough to defeat religious exemptions in the past.

“RFRA would offer little protection for religious organizations, even against trivial governmental interests, if third-party harm were always enough to thwart a claim,” the brief reads.

Missouri nonprofits CNS Ministries and Heartland Christian College, the only nonprofit groups to win at the circuit level, which led to the Supreme Court taking up the issue, filed a brief explaining the history of the administration’s “accommodation” for nonprofits.

The brief details how the administration changed the accommodation at least eight times since 2010 in response to religious groups’ outcry and court rulings against the government.

“The government now claims that, after eight stingy, parsimonious backward steps, it has again identified the absolutely irreducible least restrictive means of enforcing its regulatory contraceptive mandate,” the brief reads. “Given the panoply of alternative means still available to and untried by the government, its current version is no more credible than those rejected in the past.”

The prospects for the religious nonprofits are not good since the death of Justice Antonin Scalia. The for-profit businesses challenging the mandate in Burwell v. Hobby Lobby won only by 5-4. If the nonprofit plaintiffs represented in this case achieve a tie, the lower court rulings against them would stand—though the silver lining would be that the case would not set a national precedent undermining RFRA.

On Wednesday morning, Paul Clement, who successfully argued Hobby Lobby, will argue for the nonprofits, as well as Noel Francisco, whose firm has represented many of the Catholic challengers to the mandate. U.S. Solicitor General Donald Verrilli Jr. will argue the federal government’s case supporting the mandate on the grounds that the current accommodation for nonprofits sufficiently addresses their religious liberty concerns.

Editor’s note: One of the attorneys for the Missouri nonprofit groups is Emily Belz’s uncle.