This column by ACRU Senior Legal Analyst Ken Klukowski was published on January 1, 2013 on Breitbart.com.
Just last week Breitbart News reported on the threat to religious liberty from the HHS Mandate: starting today, Hobby Lobby is subject to penalties of $1.3 million per day for its owners refusing to violate their Christian beliefs after a federal appeals court and Justice Sonia Sotomayor declined to grant emergency relief.
Now another federal appeals court has gone the other way, siding with religious liberty and setting the stage for a Supreme Court showdown.
K & L Contractors is a construction company owned by Cyril and Jane Korte, devout Roman Catholics committed to running their business according to their faith. They have refused to cover abortion and birth control in their employee health insurance plan, which they are now required to do under Obamacare’s HHS Mandate.
On Dec. 28, 2012, the U.S. Court of Appeals for the Seventh Circuit ruled that the HHS Mandate violates this family’s religious liberty as guaranteed by the Religious Freedom Restoration Act (RFRA). Kathleen Sebelius’ mandate could be argued to violate the First Amendment as well, but if a court can resolve a case by looking to a statute, it will avoid issuing an opinion regarding constitutional issues. The Seventh Circuit has issued an injunction while the appeal in this case, Korte v. Sebelius, is pending.
In a 2-1 split decision, a three-judge panel of the Seventh Circuit in Chicago rejected the Tenth Circuit’s conclusion in Hobby Lobby Stores, Inc. v. Sebelius that the HHS Mandate does not impose a significant burden on religious freedom by forcing employers to provide insurance that covers things they regard as immoral.
The Seventh Circuit reasoned, “With respect, we think this misunderstands the substance of the claim. The religious-liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not–or perhaps more precisely, not only–in the later purchase or use of contraception or related services [by employees].”
The Seventh Circuit also noted that the Eighth Circuit in St. Louis recently came down on the same side of this issue in O’Brien v. U.S. Dep’t of HHS, leaving the Tenth Circuit in Denver as the minority of what is now a 2-1 split between the federal appeals courts.
This now sets the stage for a Supreme Court showdown. The justices may let this issue play out for a few more months until a couple appellate courts hand down full-length opinions exploring all these issues. By contrast, the Seventh Circuit’s action is just an eight-page order.
Or the justices could decide that this issue is already dividing the country to such a degree with sufficient judicial examination that they should take one of the cases now. It’ll be interesting to see if the Obama-Holder Justice Department asks for Supreme Court review after this loss.
Either way, this issue is likely heading to the Supreme Court soon. The justices could still hear arguments on an expedited basis this April. If not, we’re probably looking at mid-autumn.