WASHINGTON — For those who imagine this week's Hobby Lobby case closed the curtain on high-profile religious liberty cases involving the Affordable Care Act, guess again.
"There are quite a few more shoes to drop," Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty that represented Hobby Lobby's owners, told the Deseret News. "The court did not pre-decide the nonprofit accommodation cases but strongly signaled that it will strike down the government system for dealing with those organizations."
In The New York Times, another Becket Fund lawyer, Mark L. Rienzi, added: “Today’s decision will be helpful to nonprofit organizations because it rejects the idea that the government can tell religious believers that their beliefs are mistaken or insubstantial. And that’s the argument the government has been using in cases involving nonprofit organizations.”
But critics of the ruling claim that the majority opinions by Justices Samuel A. Alito Jr. and Anthony Kennedy could pose problems for the more than 50 nonprofits suing the government claiming the Affordable Care Act's contraception mandate also violates their rights under Religious Freedom Restoration Act.
Marcia D. Greenberger, co-president of the National Women’s Law Center, Alito's majority and Kennedy's concurring opinions suggested the accommodation the government has offered to eliminate the conscience burden on religious nonprofits is a reasonable alternative: “Today’s decision does not bode well for the nonprofit organizations,” Greenberger said.
A report in the Huffington Post quoted Kevin Martin, an expert in constitutional law and former law clerk for Justice Antonin Scalia, saying "that while the conservative justices clearly did not rule on the constitutionality of the religious accommodation, Kennedy 'goes out of his way in the other direction to say the accommodation does not burden religious exercise rights.'"
And in the Deseret News, University of Virginia law professor Douglas Laycock, who helped spearhead the RFRA in 1993, said the court "found a win-win solution, and I would be surprised if they jeopardize that solution by giving broad (certification) relief to the nonprofits."
Among the nonprofits suing the government is the Little Sisters of the Poor that contends the government's accommodation of signing a certification that tells a third party to handle birth control coverage would merely "deputize a third party to sin on their behalf," as the Becket Fund stated in a 2014 petition to the Supreme Court for both emergency relief and a full hearing of the case.
Writing in a blog for the U.S. Conference of Catholic Bishops, Sister Mary Ann Walsh drew hope for the Little Sisters and others from the Hobby Lobby verdict: "The court did not decide these cases, which will likely face it in its new term, but has helpfully said that it is not the government’s job to second-guess how religious groups view their religious obligations," she wrote.
The bottom line? It's highly likely that the drama which attended the Hobby Lobby case will carry over to the next high court challenge to the HHS mandate as well.
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