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Catholic group asks U.S. government to drop appeal in HHS mandate case

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Catholic News Service

WASHINGTON — The Catholic Benefits Association has filed a motion with the 10th U.S. Circuit Court of Appeals in Denver over a three-year-old appeal by three Cabinet departments in a case involving the “HHS mandate” that says all employers must provide contraceptive coverage.

President Donald Trump shows his signed Executive Order on Promoting Free Speech and Religious Liberty during a National Day of Prayer event at the White House in Washington May 4. (CNS photo/Jim Lo Scalzo, EPA)

President Donald Trump shows his signed Executive Order on Promoting Free Speech and Religious Liberty during a National Day of Prayer event at the White House in Washington May 4. (CNS photo/Jim Lo Scalzo, EPA)

The association, which counts 1,000 Catholic institutions and privately run companies among its membership, including dioceses and hospitals, filed suit in 2014, seeking elimination of the mandate. The court granted a preliminary injunction because it believed the government’s action violated RFRA.

The government promptly appealed the injunction and since then has asked for several delays to argue its appeal. Defendants in the case are the Cabinet departments of Treasury, Labor, and Health and Human Services, which issued the mandate in 2012 as part of the Affordable Care Act. 

The CBA wants the court to force the departments to meet a July 31 deadline the court set for them to address the association’s arguments.

In a filing made July 21, the CBA, based in Castle Rock, outside Denver, said the federal government does not need to ask for yet another extension in the matter.

The CBA motion cited four reasons the court should dismiss the appeal: “The parties agree that the mandate substantially burdens religious exercise. The parties agree that the mandate does not further a compelling interest. The parties agree that the departments have less restrictive means of advancing their interests. The parties agree that the mandate is illegal under RFRA,” the Religious Freedom Restoration Act of 1993.

Since the preliminary injunction, “the departments have filed status reports in the CBA appeals on 10 separate occasions” — two in 2015, five in 2016 and three thus far this year – “each asking the court to delay ruling on the merits,” said the association’s motion for summary judgment in the case.

“There is a possibility, given the current climate, we agree and we’re going to drop this thing,” CBA executive director Doug Wilson told Catholic News Service, adding his confidence this would happen was “not terribly high.”

“We’re still fighting this despite what’s come out of our own agencies,” Wilson said July 28, referring to the Trump administration, which is seen as friendlier to the CBA’s stance. “It would be very hard to explain that (legal) position, but it’s certainly possible,” he added. “Unfortunately, despite the fact that the court was very clear that they wanted a specific response to our filing and not another request for a time extension, they could come back and say, ‘We’re close to a new regulation, could we please have one more extension?’”

Wilson cited President Donald Trump’s May 4 Rose Garden address at which he unveiled his “Promoting Free Speech and Religious Liberty” executive order, when he told members of the Little Sisters of the Poor, another plaintiff fighting the mandate: “Your long ordeal will soon be over. … We are ending the attacks on your religious freedom.”

Almost a month later, on May 31, an HHS draft rule was leaked to the press. The 125-page draft would exempt religious groups from the contraceptive mandate. It still has not been formally issued, the CBA noted. It remained under final review by the Office of Information and Regulatory Affairs in the White House Office of Management and Budget, according to the office’s website.

 

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Indiana bishops call for ‘mutual respect,’ dialogue on religious freedom bill

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Catholic News Service

INDIANPOLIS — Indiana’s Catholic bishops April 1 urged people to show mutual respect for one another and allow “the necessary dialogue” to take place to make sure no one in the state will face discrimination, “whether it is for their sexual orientation or for living their religious beliefs.”

Demonstrators rally at Monument Circle in Indianapolis March 28 to protest a religious freedom bill signed in to law by Indiana Gov. Mike Pence. More than 2,000 people gathered at the state Capitol to protest Indiana's Religious Freedom Restoration Act because they say it would promote discrimination against individuals based on sexual orientation. (CNS photo/Nate Chute, Reuters)

Demonstrators rally at Monument Circle in Indianapolis March 28 to protest a religious freedom bill signed in to law by Indiana Gov. Mike Pence. More than 2,000 people gathered at the state Capitol to protest Indiana’s Religious Freedom Restoration Act because they say it would promote discrimination against individuals based on sexual orientation. (CNS photo/Nate Chute, Reuters)

Remarking on the state’s Religious Freedom Restoration Act, signed into law March 26, they said it “appears to have divided the people of our state like few other issues in recent memory.”

Their statement came amid protests by gay rights groups and others who say that the new religious freedom law could be a vehicle of legal discrimination.

Republican Gov. Mike Pence said he stood behind the religious freedom bill passed by the Indiana General Assembly when he signed it into law, but has since asked state lawmakers to send him some clarifications to make “it clear that this law does not give businesses the right to deny services to anyone.”

“We want to make it clear that Indiana is open for business, we want to make it clear that Hoosier hospitality is not a slogan, it’s our way of life,” he said at a morning news conference March 31.

Pence attributed the firestorm over the measure to a combination of what he called “mischaracterization,” “misunderstanding” and “sloppy reporting.” As a result “Indiana has come under the harsh glare of criticism from around the country,” he said.

In their statement, the Catholic bishops reiterated the Catholic Church’s teaching that “every human being is created in the image of God,” that “every person deserves to be treated with dignity and respect” and that everyone has a right to life’s basic necessities.

“We believe that it is crucial that religious freedom be protected,” they said.

“We support efforts to uphold the God-given dignity of all the people of this state while safeguarding the rights of people of all faiths to practice their religion without undue burden from the government,” they said in conclusion.

At the signing ceremony, Pence said if he thought the religious freedom bill “legalized discrimination in any way in Indiana, I would have vetoed it. For more than 20 years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana.”

“Indiana’s law contains no reference to sexual orientation,” he said, adding that it “simply mirrors” the federal law, known as RFRA.

The 1993 law says that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest.” It does not apply to the states, so with Indiana, there are now 20 that have passed such legislation.

In a March 27 post on a blog for lawyers called IN Advance, Indiana trial lawyer Matt Anderson called his state’s measure a “vague and just a poorly written law” that he said could be applied to disputes between private citizens. “You can defend yourself in a criminal or civil action on the very broad basis of ‘any exercise of religion,’” which is how it could be used to discriminate against gays and others, he argued.

Richard Garnett, a law professor at the University of Notre Dame in northern Indiana, in an opinion column in the March 26 issue of the South Bend Tribune, called the state’s RFRA a “moderate measure” modeled after the federal law and those of several other states and said it “does not give anyone a ‘license to discriminate.’”

Garnett noted that the more than 20 years of history of the applying of RFRA statutes to specific cases shows that courts across the country “have not applied it to require excessive accommodations or exemptions from anti-discrimination laws and civil-rights protections.”

In response to criticism, House Speaker Brian Bosma and Senate President Pro Tem David Long announced that the General Assembly will consider legislation to clarify the religious freedom law, which received a large majority of support from both chambers. The Senate passed the bill 40-10, and the House approved it 63-31.

Several House members spoke out against the bill during floor debate.

Democratic Rep. Ed Delaney of Indianapolis called the bill “futile and destructive,” adding that he felt the bill would allow discrimination. House Minority Leader Rep. Scott Pelath, a Democrat from Michigan City, also raised concerns, saying that he also believed the bill would permit discrimination.

Democratic Reps. Vernon Smith of Gary and Cherrish Pryor of Indianapolis, who are African-Americans, said even though they were devout Christians, they opposed the bill because they believed it could potentially cause discrimination.

In his opinion piece, Garnett pointed out that religious freedom laws have helped people of a broad variety of faiths.

“In practice, over the last two decades or so, Religious Freedom Restoration acts have been used not to excuse illegal discrimination or harmful behavior but instead to secure humane accommodations,” Garnett said, “such as allowing members of a small Brazilian church to possess plants that are necessary to make sacramental tea, or preventing the government from firing a Rastafarian with a traditional haircut, or respecting a family’s religious objections to an autopsy of their loved one.”

Professor Daniel Conkle of Indiana University’s Maurer School of Law has repeatedly sought to debunk the claims that RFRA allows for discrimination, citing current legal cases in support of his position. He testified during the House and Senate hearings, and reiterated his position in a recent opinion column in The Indianapolis Star.

Conkle, a constitutional law expert who supports gay rights and same-sex marriage, said the RFRA legislation has “little to do with same-sex marriage and everything to do with religious freedom.”

He added that “most religious freedom claims have nothing to do with same-sex marriage or discrimination.”

Conkle said in his column the Indiana law is “anything but a license to discriminate, and it should not be mischaracterized or dismissed on that basis.”” According to Conkle, even in the narrow setting of wedding service providers, claims for religious exemptions recently have been rejected in various states, including states that have adopted RFRA legislation.

 

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