The HHS Mandate - An Important Issue of Religious Liberty
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The HHS Mandate in the Supreme Court

Two cases with opposite outcomes in the Third and Tenth Circuits are before the Supreme Court and will be heard on March 25th.  A decision should be handed down by the end of June 2014.

Listen to audio from the Supreme Court argument (3/25/14) in Hobby Lobby and Conestoga Wood.

  In Sebelius v. Hobby Lobby, the Tenth Circuit, sitting en banc, held that:

  • for-profit corporations are “persons” for purposes of the Religious Freedom Restoration Act;
  • the corporations’ exercise religion was substantially burdened by the multimillion dollar fines the government threatened to impose; 
  • the government's interests in public health and gender equality did not constitute compelling interests achieved by the least restrictive means, particularly in light of the numerous exemptions already given many other corporations; and
  • therefore, RFRA required an individualized exemption for the corporations. 

The Hobby Lobby briefs can be read here

In Conestoga Wood Specialties Corp. v. Sebelius, the Third Circuit held that:

  • a for-profit, secular corporation was not a person for purposes of RFRA; 
  • could not engage in religious exercise under the Free Exercise Clause or RFRA claim; and 
  • the corporations’ religious owners, a  Mennonite family, were not protected by RFRA and the Free Exercise Clause because the Mandate only required their business to act, not them. 

In Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, the Supreme Court issued an injunction, on January 24, 2014, protecting the Little Sisters of the Poor from the Mandate while their case is heard by the Tenth Circuit.  While the Court stressed that its decision was not a final one on the merits, it was welcome news for the nuns and other religious non-profits.  On New Year’s Eve, Justice Sotomayor had issued a temporary stay to prevent immediate enforcement of the Affordable Care Act contraceptive coverage mandate compromise against the Little Sisters of the Poor, at least until the government could file its response.  For that act of mercy, Justice Sotomayor took some heat in the liberal media.  The case has now been briefed in the Tenth Circuit, but has not yet been argued or decided.