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Oral arguments heard on religious exemption to mandate

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PHILADELPHIA — The U.S. District Court in Philadelphia heard oral arguments Dec. 14 in a suit that aims to take away the exemption granted in October to the Little Sisters of the Poor and other religious employers allowing them to refuse to cover contraceptives for their employees on moral grounds.

A similar hearing took place Dec. 12 in U.S. District Court in Oakland, California. Read more »

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Open to suggestions — High court seeks details on how employee contraceptive coverage might not involve religious employers

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Catholic News Service

WASHINGTON — Less than a week after the Supreme Court heard oral arguments about the Affordable Care Act’s contraceptive requirement, the court released an order requesting that additional briefs be submitted showing if and how contraceptive insurance coverage could be obtained by employees through their insurance companies without directly involving the religious employers objecting to this coverage.

A religious sister displays a sign as she and others protest the Affordable Care Act's contraceptive mandate March 23  outside the U.S. Supreme Court in Washington. The court heard oral arguments in the Zubik v. Burwell mandate case. (CNS photo/Joshua Roberts, Reuters)

A religious sister displays a sign as she and others protest the Affordable Care Act’s contraceptive mandate March 23 outside the U.S. Supreme Court in Washington. The court heard oral arguments in the Zubik v. Burwell mandate case. (CNS photo/Joshua Roberts, Reuters)

The order was released the afternoon of March 29, just six days after the justices heard oral arguments in Zubik v. Burwell, a consolidated case involving the Little Sisters of the Poor, Priests for Life, the Pennsylvania dioceses of Pittsburgh and Erie, and the Archdiocese of Washington. The groups are challenging the Affordable Care Act’s mandate that most religious and other employers must cover contraceptives, sterilization and abortifacients through employer-provided health insurance.

Religious groups who did not fit the narrow exemption to the contraceptive mandate given to churches and religious groups argue that they cannot participate in providing contraceptives without violating their beliefs and that the Obama administration’s “work-around” allowing them to acknowledge their opposition and thereby trigger an arrangement for a third party to provide the coverage is still objectionable.

The court’s March 29 order specifically outlined the procedures that objecting religious employers must follow if they do not want to provide insurance coverage of contraceptives and went on to suggest that the groups could contract a third party to provide health insurance for their employees, but they would need to inform the insurance company that they did not want the plan to include contraceptive coverage that they find objectionable.

The insurance companies, the order said, could “separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.”

With the plan, the objecting religious employers would not have to submit a form to the government or their insurance companies about the coverage.

The Supreme Court’s order also pointed out that the parties involved in this case may have “other proposals along similar lines,” but they should avoid repeating what they mentioned in previous briefings.

The additional information should be submitted by April 12 and should be limited to 25 pages for the petitioners and April 20, and no more than 20 pages, for respondents, the order said.

The court’s request for more information came out the same day the court voted 4-4 in a case challenging the fees that labor unions collect from nonmembers.

Many have speculated that with Justice Antonin Scalia’s death in February, the current court of eight justices will result in a number of split decisions.

After the oral arguments in Zubik v. Burwell, there was plenty of speculation that the court seemed poised for a split decision in this case as well, which would uphold the lower courts’ decision and mean the contraceptive mandate for religious groups will be interpreted differently in different areas of the country.

 

Follow Zimmermann on Twitter: @carolmaczim.

 

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Supreme Court hears arguments in HHS contraceptive mandate case

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Catholic News Service

WASHINGTON — During oral arguments March 23 at the Supreme Court, attorneys on both sides of the Affordable Care Act’s contraceptive requirement examined how the mandate either violates or strikes a balance with religious freedom.

Bishop David A. Zubik of Pittsburgh and Cardinal Donald W. Wuerl of Washington near the U.S. Supreme Court March 23 in Washington. The high court heard oral arguments in the Zubik v. Burwell contraceptive mandate case. (CNS /Joshua Roberts, Reuters)

Bishop David A. Zubik of Pittsburgh and Cardinal Donald W. Wuerl of Washington near the U.S. Supreme Court March 23 in Washington. The high court heard oral arguments in the Zubik v. Burwell contraceptive mandate case. (CNS /Joshua Roberts, Reuters)

Lawyers representing the seven groups of plaintiffs said the federal government’s so-called accommodation for religious employers to arrange for a third party to provide contraceptive coverage in health plans was inconsistent because the government already had been able to provide churches an exemption from the requirement.

Paul Clement of the Washington-based Bancroft firm, who was one of two lawyers representing the plaintiffs, argued that religious freedom was at stake in the federal government’s accommodation because even though the contraceptive coverage would be supplied by a third party, the religious employers would still be complicit in providing something that goes against their beliefs.

“The problem is we have to fill out a form, and the consequence of us filling out that form is we will be treated very differently from those other religious employers” that are exempt, he said.

U.S. Solicitor General Donald Beaton Verrilli Jr., in defending the federal government, argued that the government’s accommodation struck the necessary balance required by the Religious Freedom Restoration Act of 1993.

RFRA says that if a law restricts the free exercise of religion guaranteed by the Constitution, there must be a compelling government interest to do so and it must not place an unreasonable burden on the religious exercise.

Justice Ruth Bader Ginsburg stressed that “no one doubts for a moment the sincerity” of the religious employers that object to providing contraceptive health care coverage, but she and other justices indicated that such a belief goes up against the compelling interest of the government’s plan to provide health coverage for women, and the accommodation sought to find that balance.

Clement argued that an accommodation isn’t “immune from RFRA analysis” and that the problem is giving an accommodation to some religious groups, but not all.

Noel Francisco of Jones Day, arguing on behalf of the dioceses who are plaintiffs, also noted that if the government is willing to address the contraceptive coverage in some ways for groups that meet the accommodation standard, than they should look to other ways for other religious groups to be exempt as well.

There was a fair amount of back and forth on where the government should draw the line and if it draws it one place, should it draw it again, or should it never have drawn the line in the first place?

Verrilli said the government’s line has not always been perfect, but it did try to try to strike a balance. There is an objective limit to what RFRA can do, he added.

He also said the government’s solution was the least restrictive approach, and he also did not think the plaintiffs, by using third parties, were complicit in what they disagreed with, even though they have stated again and again they feel that way.

As the discussion centered on health exchanges, grandfathered clauses and exemptions, Chief Justice John Roberts summed up the argument with Verrilli as the government’s desire for a “seamless” health care package versus the religious objections of the plaintiffs.

The Little Sisters of the Poor, Priests for Life and the dioceses of Pittsburgh and Erie, Pennsylvania, and the Archdiocese of Washington are among numerous plaintiffs around the country consolidated into Zubik v. Burwell.

The case is named for Pittsburgh Bishop David A. Zubik and Sylvia Mathews Burwell, the current secretary of the Department of Health and Human Services.

Under the Affordable Care Act of 2010, most religious and other employers are required to cover contraceptives, sterilization and abortifacients through employer-provided health insurance. Refusal to comply subjects nonexempt employers to heavy fines.

A very narrow exemption for churches and religious orders was permitted from the start, but several Catholic and other religious institutions and ministries that were not exempted, such as colleges, hospitals and charitable providers, said they could not participate in providing contraceptives without violating their beliefs.

The Obama administration then created its accommodation, or “work-around,” that allows objecting employers to acknowledge their opposition to the contraceptive coverage by notifying HHS in a letter. This triggers an arrangement for a third party to provide the coverage. These employers still found the “opt-out” provision objectionable.

Five years later, several circuit courts of appeal ruled that religious entities, such as the Denver-based Little Sisters of the Poor, were not substantially burdened by the opt-out procedures. Only one such court, the 8th U.S. Circuit Court of Appeals, in a September ruling, accepted the nonprofits’ argument that complying with the opt-out provision violates their religious beliefs.

In the 2014 Hobby Lobby case, the Supreme Court relied on RFRA to rule in favor of two family-owned private businesses, Hobby Lobby Stores and Conestoga Wood Specialties, who argued that providing contraceptives in health care coverage to employees was contrary to the owners’ Christian beliefs.

 

Follow Zimmermann on Twitter: @carolmaczim.

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Supreme Court considers same-sex marriage in states that bar it

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Catholic News Service

WASHINGTON — The questions raised by Supreme Court justices as they considered April 28 whether they should rule that same-sex marriage should be made legal nationwide covered a gamut of rights concerns — religious, equal protection, states’ ability to enact their own laws.

A man holds a sign supporting traditional marriage near Capitol Hill in Washington during the third annual March for Marriage April 25. The Supreme Court heard cases April 28 for states to honor the constitutionality of same-sex marriage. (CNS photo/Tyler Orsburn)

A man holds a sign supporting traditional marriage near Capitol Hill in Washington during the third annual March for Marriage April 25. The Supreme Court heard cases April 28 for states to honor the constitutionality of same-sex marriage. (CNS photo/Tyler Orsburn)

In two and a half hours of oral arguments, the line of questions and the answers by attorneys representing both sides made clear that all concerned recognize the potential for the court’s ruling to be history-making.

Even the justices who sounded inclined to allow states to continue to ban same-sex marriage and refuse to recognize such marriages from other states seemed to recognize that it is no longer a question of if but when and who decides that same-sex marriages are allowed.

“The issue is not whether there should be same-sex marriage, but who should decide,” said Justice Antonin Scalia in an exchange with Mary Bonauto, attorney for James Obergefell and other petitioners seeking the right to have same-sex marriage allowed or recognized in their states.

“And you’re asking us to decide it for this society when no other society until 2001 ever had it,” Scalia added.

Chief Justice John Roberts observed that the country has moved quickly from firm opposition to such marriages and a nationwide prohibition on them to the current status of broad acceptance and a majority of states allowing same sex marriage. Numerous legal observers have drawn a connection between the marriage cases and the speed with which the nation had to accept the legality of abortion when the court ruled in 1973 that it is constitutionally protected. They suggest that a constitutional finding in favor of same-sex marriage would similarly preempt voters’ rights to decide such a complex moral issue.

“If you prevail,” he told Bonauto, the nationwide legal debate about the issue will be over, but the people who are still making up their minds how they feel about same sex marriage will be deprived of the chance to weigh in about how their states act.

“People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts,” Roberts said.

Justice Anthony Kennedy, who often is a swing vote in cases that divide along liberal/conservative lines, and Justice Samuel Alito also raised several questions about the speed with which same-sex marriage has become accepted and whether the court should be wading in to find a constitutional right at this time.

Kennedy said the 10-year period over which U.S. states have begun to allow same-sex marriage is a short amount of time on which to base a ruling to change that.

“This definition has been with us for millennia,” he said. “And it’s very difficult for the court to say, oh, well, we know better.”

Alito observed that, “until the end of the 20th century, there never was a nation or culture that recognized marriage between two people of the same sex. Now, can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way, or is it your argument that they were all operating independently, based solely on irrational stereotypes and prejudice?”

Bonauto said in response that “times can blind.” For example, discrimination on the basis of sex was assumed to be constitutionally protected, she said, and it took more than 100 years for the court to find otherwise.

Justice Ruth Bader Ginsburg pointed out that the cases seeking reversal of rulings that upheld state bans on same-sex marriage wouldn’t be up for the court’s consideration “if marriage was what it was a millennium ago.” She gave the example of another change in how marriage is understood, citing times when a woman’s role in a marriage was subservient to the man’s decisions. “There was a change in marriage to make it egalitarian when it wasn’t egalitarian.”

Bonauto expanded on that, saying that for centuries the U.S. and Europe had a system “where a woman’s legal identity was absorbed into that of her husband and men and women had different prescribed legal roles. And again, because of equality and changing social circumstances all of those gender differences in the rights and responsibilities of the married pair have been eliminated. And that, of course, is a system in which committed same-sex couples fit quite well.”

Scalia also raised questions about whether clergy would be required to participate in same-sex marriages that violate their religious beliefs. “You could have ministers who conduct real marriages that are civilly enforceable at the National Cathedral (run by the Episcopal Church) but not at St. Matthew’s (Catholic) downtown because that minister refuses to marry two men and therefore cannot be given the state power to make a real state marriage. I don’t see any answer to that. I really don’t.”

No ministers in states with same-sex marriage have been forced to preside at marriages they don’t wish to perform, Bonauto said. But Scalia persisted, saying that if such marriages are constitutionally protected, they will have to do so.

Justices Elena Kagan and Stephen Breyer stepped into the issue.

“There are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination,” she said. “And those rabbis get all the powers and privileges of the state.”

Breyer quoted the First Amendment: “It’s called Congress shall make no law respecting the freedom of religion.”

The attorney representing the states that want to keep their bans on same-sex marriage, Michigan’s special assistant attorney general John J. Bursch, argued that if the court finds a constitutional right to such marriages, it would lead to fewer marriages between heterosexual couples and therefore fewer children being raised in two-parent households.

“There’s harm if you change the definition because, in people’s minds, if marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children outside of marriage.” That’s why, he said, the state must follow through with its obligation to protect children by keeping marriage defined in the way that lends itself to parents raising their own biological children.

“We’re talking about something that’s going to change the meaning of the institution over generations,” Bursch said. “You have things like no-fault divorce where we tweaked what marriage means and it had consequences over the long term that some people didn’t expect.”

In the second question the court took up, whether states that don’t permit same-sex marriages are obligated to recognize such unions performed in other states, attorney Douglas Hallward-Driemeier repeatedly referred to his clients’ marriages being dissolved by the states where they live.

“These petitioners have built their lives around their marriages, including bringing children into their families, just as opposite-sex couples have done,” Hallward-Driemeier said. “But the non-recognition laws undermine the stability of these families.”

He and attorney Joseph F. Whalen, associate solicitor general of Tennessee, who was defending several states’ rights to not recognize same-sex marriages, both agreed that if the court rules in the first question that there is a constitutional right to such unions, their cases become moot.

That portion of the argument batted around questions of when a state may decide a marriage recognized in one state can be ignored in another.

Whalen said before the question of same-sex marriages came up the last time Tennessee had refused to recognize another state’s marriage was in 1970, in a case involving a marriage of a stepfather and stepdaughter.

The court was weighing four cases from Tennessee, Michigan, Kentucky and Ohio.

All four cases under review are all from the 6th U.S. Circuit Court of Appeals, which ruled in November that laws prohibiting same-sex marriage are constitutional. That 2-1 ruling came in the case of a lesbian couple in Michigan who sought to jointly adopt the special needs children they are raising together. The state will not allow adoption by couples that are not married and it prohibits same-sex marriage.

The opinion said that although it is inevitable that same-sex marriage will be allowed nationwide, it is better to make that change through a political process, rather than a court ruling. The 6th Circuit was the first federal appeals court to find in favor of such bans. Four other federal appellate courts have found same-sex marriage prohibitions to be unconstitutional.

The court bundled the appeals under the title of the Ohio case, Obergefell v. Hodges. That case arose after the October 2013 death of John Arthur of Cincinnati. He and his longtime partner, Obergefell, had married earlier that year in Maryland. When the local Ohio registrar agreed to list Obergefell as the surviving spouse on Arthur’s death certificate, which is key to a range of survivor’s benefits, the state attorney general challenged the status because Ohio law bars same-sex marriages.

The other cases under consideration include: Tanco v. Haslam, the Tennessee case, and Bourke v. Beshear, the Kentucky case, which similarly challenge those states’ refusal to recognize same-sex marriages performed in other jurisdictions, and DeBoer v. Snyder, the Michigan adoption case.

The U.S. Conference of Catholic Bishops was among Catholic organizations that filed “amicus” or friend-of-the-court briefs urging the justices to maintain the definition of marriage as applying just to one man and one woman.

The Catholic Church teaches that marriage is only a union of one man and one woman. The church teaches that homosexual attraction itself is not sinful, but homosexual actions are. Any sexual activity outside of marriage is considered sinful.

As of late April, 37 states and the District of Columbia allow same-sex marriages, most due to federal and state court rulings.

The court’s ruling is expected before it adjourns for the term in late June.

 

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