An important win for Catholic institutions in HHS litigation

The dioceses of Erie and Pittsburgh secured a preliminary injunction from a federal court against the so-called contraception-coverage mandate.  The story is here.  What is particularly important about this case, it seems to me, is that -- unlike the rulings that have been the subject of a lot of news coverage lately, and that the Supreme Court is likely to take up soon -- it does not involve the protections afforded by RFRA to for-profit entities or individuals operating businesses.  It involved, instead, not only the dioceses themselves but various Catholic non-profit entities (Catholic Charities, Erie Catholic Preparatory School, St. Martin Center, etc.).  And, the case -- unlike Hobby Lobby, etc. -- involves a challenge to the "accommodation," not the mandate as it applies to businesses.

Here is a bit from the news story:

The judge wrote in his 65-page opinion that he was ruling on whether "the Government will be permitted to sever the Catholic Church into two parts (i.e., worship and faith, and 'good works') -- in other words, whether the Government will be successful in restricting the Right to the Free Exercise of Religion as set forth in the First Amendment to a Right to Worship only."

The judge wrote that he "is constrained to understand why religious employers such as Catholic Charities and Prince of Peace Center -- which were born from the same religious faith, and premised upon the same religious tenets and principles, and operate as extensions and embodiments of the Church, but are not subsidiaries of a parent corporation -- would not be treated the same as the Church itself with respect to the free exercise of that religion."

The opinion in the case (Zubik v. Sebelius) is available here: Download Erie opinion.

A few items of possible interest, while I work on digesting the opinion.  First, I was struck by the fact that the ACLU filed an amicus brief against the dioceses' motion for a preliminary injunction.  That is, the American Civil Liberties Union filed a brief -- in a trial court, in the context of a motion for a preliminary injunction -- asking the court not to rule in favor of religious institutions seeking to invoke the protections of the Religious Freedom Restoration Act and the First Amendment against a government mandate.  I was surprised (but maybe I should not have been).

Next, the court followed Judge Sykes's recent (and compelling) opinion for the Seventh Circuit in Korte, and emphasized that, with respect to the "substantial burden" aspect of the RFRA claim, "[i]t is enough that the claimant has an 'honest conviction' that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion."  The court continued:  

The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.

Third, I was particularly interested in the court's conclusions that "the accommodation and the exemption divide the Catholic Church which creates a substantial burden":

[T]he religious employer “accommodation” separates the “good works (faith in action) employers” from the “houses of worship employers” within the Catholic Church by refusing to allow the “good works employers” the same burden-free exercise of their religion. . . .

Simply put, the Court is constrained to understand why all religious employers who share the same religious tenets – (1) the sanctity of human life from conception to natural death; (2) unity of worship, faith, and good works (“faith without good works is dead”); and (3) the facilitation of evil is as morally odious as the proliferation of evil – are not exempt; or conversely, why all religious employers do not fall within the confines of the “accommodation.” The Court made the factual determination that Plaintiffs sincerely believe that the “good works, or faith-in-action” arms of the Catholic Church implement a core and germane guiding principle in the exercise of their religious beliefs. Why should religious employers who provide the charitable and educational services of the Catholic Church be required to facilitate/initiate the provision of contraceptive products, services, and counseling, through their health insurers or TPAs, when religious employers who operate the houses of worship do not?

In addition, the court noted that the Government's attempt to force a division between exempt "houses of worship"-type employers and non-exempt "good works"-type employers "unnecessarily -- and in direct contravention to the RFRA and the Free Exercise Clause of the First Amendment -- entangles the Government into determining what constitutes 'religion.'"  (I would have expected the no-entanglement rule to be attached to the Establishment Clause, but . . . no matter here.)  

Finally, for now, the court's response to the Government's claims about "least restrictive means" and the "harm to the Government" that would result from an injunction is hard-hitting (and correct):

The Court concludes that the combined nationwide total of all of those employers who fall within an exclusion, an exemption, or whose plans are “grandfathered” (approximately 100 million individuals are on “grandfathered” health plans) creates such an “underinclusiveness” which demonstrates that the Government will not be harmed in any significant way by the exclusion of these few Plaintiffs.