Earlier this week, religious employers suffered another loss at the hands of the coercive Obamacare Health and Human Services mandate.
A U.S. Court of Appeals for the 5th Circuit panel ruled against East Texas Baptist University and a group of other non-profit religious employers in their challenge to the Obamacare requirement that they facilitate health care coverage for employees that includes contraceptives and abortion-inducing drugs and devices, or fill out a form notifying the Department of Health and Human Services that they have a religious objection to providing such coverage.
This so-called “accommodation” then initiates the process of the government forcing insurers and third-party administrators to provide the mandated coverage to employees. For many religious employers, this alternative to directly providing coverage doesn’t assuage their moral objections.
East Texas Baptist University and many others argue that the causal link between notifying the government and the resulting provision of objectionable drugs and devices still violates their faith, and federal law prohibits the government from substantially burdening the free exercise of religion unless it can show that the burden is the least restrictive means of furthering a compelling government interest.
The 5th Circuit panel ruled against the plaintiffs, finding they did not show that this accommodation substantially burdens their religious exercise, concluding that “[a]lthough the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives.” The panel continued, “[t]he sincerity of their beliefs is undisputed,” but the employers’ “submission of a notice to HHS does not authorize or trigger payments for contraceptives.” Thus, in the panel’s view, their religious exercise is not burdened.
The panel compared this case to Lyng v. Northwest Indian Cemetery Protective Association (1988), in which the Supreme Court ruled in favor of the federal government in a dispute over plans to allow logging on federal land that the plaintiffs used for religious purposes. In that case, the court noted, “whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of that line cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.”
East Texas Baptist University’s case, however, is closer to another Supreme Court decision holding that even an indirect burden may substantially infringe on free exercise rights. In Thomas v. Review Board (1981), the court ruled in favor of a steelworker who was denied unemployment benefits after quitting his job because he was tasked with producing tank turrets and his religion forbade him from making war materials. Under the 5th Circuit panel’s reasoning, Thomas should have lost his case because the government didn’t force him to operate a tank. The Supreme Court concluded in the Thomas case, “[I]t is not within the judicial function and judicial competence to inquire whether [someone] correctly perceived the commands of [his] faith. Courts are not arbiters of scriptural interpretation.” Thus, courts should not be in the business of line-drawing when it comes to theological questions.
But this type of line-drawing is precisely what the 5th Circuit panel and other appellate courts have done. Though the government (and three 5th Circuit judges) may believe this accommodation is sufficient to distance these religious employers from acts they find morally objectionable, East Texas Baptist University and many others clearly do not agree. As a dissenting judge in another case pointed out, “Pontius Pilate, too, washed his hands, but perhaps he perceived the stain of complicity remained.”
With several similar cases making their way through the appellate courts, it is possible the Supreme Court will take up this issue in the future.
This piece originally appeared in The Daily Signal