I’m pleased to learn that Judge Robert H. Cleland of the Eastern District of Michigan yesterday granted an individual and his family-owned “secular, for profit” company a preliminary injunction against the HHS mandate. The ruling rests on the federal Religious Freedom Restoration Act. (My series of posts on how the HHS mandate violates RFRA is here.)
Judge Cleland’s opinion has much to commend it, including:
2. Unlike the double-talk in the poorly reasoned ruling a month ago in a case from Missouri, Cleland recognizes that it is not the role of judges to second-guess a person’s sincere understanding of what his religious doctrine requires. The substantial penalty for noncompliance with the HHS mandate means that it is proper for the court to take for granted that plaintiffs are likely to show at trial that the HHS mandate substantially burdens their exercise of religion. (Slip op. at 12-13.)
3. Notwithstanding the government’s “interest in promoting public health as a general matter,” it is “uncertain” that the government will be able to prove a compelling interest in imposing the HHS mandate on Weingartz Supply Company. As exemption for the company would “affect only its 170 employees and their dependents” and thus “seems a minuscule hindrance to whatever interest, compelling or otherwise, the Government may seek to advance.” (Slip op. at 20-21.)
On the other hand, I think that Judge Cleland is clearly wrong not to recognize that the exemption of so-called “grandfathered” plans, covering tens of millions of Americans, from the HHS mandate fatally undercuts the government’s claim that the HHS mandate serves a compelling governmental interest. (See slip op. at 18-19.) I develop this general point more fully in this post in my RFRA series and won’t repeat it here. I’ll simply note that Cleland’s observation that the grandfathering rule “seems to be a reasonable plan” (emphasis added) sets a bar much lower than what the “compelling governmental interest” test requires.
I likewise believe that Judge Cleland is far too generous to the government in concluding that it might meet its burden on “least restrictive means” at trial. As I have explained (in this post), the HHS mandate adopts the means that is most restrictive of the religious liberty of objecting employers.
For those of you keeping score at home: In the context of preliminary-injunction motions, three judges have now addressed the merits of the RFRA challenge to the HHS mandate. Judge Cleland (a Bush 41 appointee) joins Judge John L. Kane (a Carter appointee) of the District of Colorado in ruling against the mandate, while Bush 41 appointee Carol E. Jackson confusedly ruled the other way.