Noteworthy Tenth Circuit En Banc Dissent in Little Sisters Case

by Ed Whelan

In a brief opinion (attached to this order), five Tenth Circuit judges strongly dissented from their court’s refusal to rehear en banc the challenge brought by the Little Sisters of the Poor to the so-called HHS mandate “accommodation.” The opinion was a welcome surprise because the Little Sisters had not sought en banc review and had instead immediately petitioned the Supreme Court to hear their case. So it’s a real credit to the five judges that they pressed for en banc review and explained how wrong the panel decision was.

Judge Harris L. Hartz, joined by Judges Kelly, Tymkovich, Gorsuch and Holmes, soundly observes that the Tenth Circuit panel messed up badly on the elementary “substantial burden” inquiry under the federal Religious Freedom Restoration Act:

The opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty. When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?

Yet the panel majority holds otherwise. Where did it go wrong? It does not doubt the sincerity of the plaintiffs’ religious belief. But it does not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution of the documents is sinful. Rather, it reframes their belief.… But it is not the job of the judiciary to tell people what their religious beliefs are.…

Fortunately, the doctrine of the panel majority will not long survive. It is contrary to all precedent concerning the free exercise of religion.

Amazingly, the Tenth Circuit panel and all the other federal appellate courts that have rejected challenges to the accommodation (e.g., Judge Posner’s Seventh Circuit ruling) have made the same kind of mistake about the substantial-burden inquiry that lower courts made before the Supreme Court’s decision in Hobby Lobby corrected them. Correcting that elementary mistake—as the Supreme Court ought to do—doesn’t mean that the Little Sisters and other challengers will ultimately win on their challenge (though they should), but it does mean that they won’t wrongly be booted out at the threshold stage of the RFRA inquiry.

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