Church, State, and the Supreme Court’s Moment of Truth by Linda Greenhouse
Last edited Thu Oct 29, 2015, 04:39 PM - Edit history (1)
'In the Hobby Lobby case 16 months ago, the Supreme Court ruled that a company with owners who objected on religious grounds to birth control was entitled to opt out of the federal requirement to cover contraception in its employee health plan. An opt-out mechanism was already in place for religious nonprofit employers, the court observed. Upon notice to the government of their objection, those employers could pass on their coverage obligation to their insurance companies or, if self-insured, to their third-party insurance administrators.
In the Hobby Lobby case 16 months ago, the Supreme Court ruled that a company with owners who objected on religious grounds to birth control was entitled to opt out of the federal requirement to cover contraception in its employee health plan. An opt-out mechanism was already in place for religious nonprofit employers, the court observed. Upon notice to the government of their objection, those employers could pass on their coverage obligation to their insurance companies or, if self-insured, to their third-party insurance administrators.
The court told the Obama administration to make the same accommodation available to for-profit corporations like Hobby Lobby. Women would still get their coverage, Justice Samuel A. Alito Jr. said for the majority, and the net effect on the female employees “would be precisely zero.”
As a resolution to a thorny problem, it sounded almost too easy to be true, and of course, given the toxic mix of religion and politics currently engulfing the country, it was.
A new wrinkle quickly emerged. It turned out that the very mechanism the Hobby Lobby majority held up as a model for how to accommodate the competing concerns of church and state was not accommodating enough for the religious nonprofits themselves. By the dozens, religiously affiliated colleges, nursing homes and similar organizations sued the government on the ground that even having to request the opt-out made them complicit in the eventual enabling of their employees to obtain birth control. These organizations are refusing, in other words, to take yes for an answer.
Seven of these cases have now reached the Supreme Court. At their weekly closed-door conference on Friday, the justices will consider whether to hear any of them. Almost certainly, the justices will accept one or more of the cases. The government had been prevailing in every case until last month, when the United States Court of Appeals for the Eighth Circuit ruled in favor of a Missouri nonprofit corporation, CNS International Ministries, Inc., that runs a residential program for adults with “life-controlling addictions, attitudes and behavioral problems.”
The Eighth Circuit decision, Sharpe Holdings, Inc. v. United States Department of Health and Human Services, is not yet before the court. But it’s worth looking at in some detail, because its central premise is a not-implausible application of Justice Alito’s Hobby Lobby opinion. Writing for the three-judge panel, Judge Roger L. Wollman said that the question was not whether the ministry or its affiliated school “have correctly interpreted the law, but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage.” The judge continued, “Their affirmative answer to that question is not for us to dispute.” . .
The act, signed into law by President Bill Clinton, passed the Senate by a vote of 97 to 3 and the House by a voice vote. It was embraced across the religious and political spectrum as a shield against the thoughtless oppression of religious minorities, not a sword in the hands of those who would invoke religion to carve a gaping hole in the fabric of civil society. If this is what the Religious Freedom Restoration Act has become, then I would like to propose a corrective statute. I would call it the Establishment Clause Restoration Act. Its time may be coming.'
http://www.nytimes.com/2015/10/29/opinion/church-state-and-the-supreme-courts-moment-of-truth.html?
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