Bench Memos

HHS-Mandate Injunction Reveals Weakness of Administration’s Arguments

There has been a lot of talk about the first big decision enjoining the application of the controversial HHS mandate. On Friday, the U.S. District Court in Colorado granted an injunction on behalf of a family business owned and operated according to the family’s Catholic principles. On August 1 when other companies like them across the country will have to choose between complying with the law and complying with their consciences, the Newland family at least will be able to go on with business as usual.

The case isn’t complete yet; the injunction only stays enforcement of the law against the Newland family and their company, Hercules Industries, until the judge has the opportunity to rule on the merits. But Friday’s decision suggests that the judge (a Carter appointee, and hardly a conservative zealot) will find several aspects of the government’s arguments pretty hard to swallow.

Quickly, while the case involves several First Amendment issues as well (free speech as well as freedom of religion), it will likely be decided under the Religious Freedom Restoration Act (RFRA), which provides that religious freedom claims be given the same judicial analysis that other fundamental rights receive. There are cases where the government can curtail religious freedom — forbidding, for example, honor killings or human sacrifice — but they have to pass “strict scrutiny.” That entails showing that the government action is narrowly tailored to advance a compelling government interest.

That compelling government interest is the first clue from Friday’s opinion that the government is in trouble in this case. The key language from Judge Kane’s opinion:

The government has exempted over 190 million health plan participants and beneficiaries from the preventive care coverage mandate; this massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.

That is, since the government has given exemptions from so many other groups for so many other reasons, it can hardly now say that this interest is so compelling it is worth sacrificing freedom of religion to achieve it.

Even if this interest were found to be compelling, Judge Kane explained, the government flubbed its attempt to show that the mandate was narrowly tailored to advance that interest. After explaining that the government’s conception of narrow tailoring was incorrect, he also pointed out that there appeared to be alternate means of achieving the government’s goal without burdening religion. For example, if free contraceptive coverage were so important, the government could simply expand the programs it currently runs to provide contraceptives to all women instead of only low-income women.

Judge Kane also signaled skepticism about the short shrift the government was giving to religious rights in general. He held that the asserted government interest in the health of women and children is “countered, and indeed outweighed, by the public interest in the free exercise of religion.”

Friday’s decision did not decide one issue that has the potential to send shock-waves through religious-freedom law: the government’s assertion that, “by definition, a secular employer does not engage in any exercise of religion.’”

This is groundbreaking: If the government prevails, then the Newlands no longer have enforceable religious rights once they enter the commercial sphere. 

Let’s stop to unpack that.

When you go to work as an employee, you don’t leave your religious beliefs at the door. Your boss still can’t discriminate against you based on religion. If you work for the government they can’t burden your religious expression without surviving strict scrutiny. So they can’t, for example, insist that you eschew distinctively religious clothing like a yarmulke or hijab or that you work during religious holidays unless such requirements are inextricably tied to the requirements of the job.

But, on the government’s analysis, once you own your own business, you relinquish the right to engage in work consistent with your religious values. 

Say PETA succeeds in passing “humane slaughter” laws that make kosher slaughter effectively impossible — as has already been done in several European countries. Could a kosher deli claim a religious exemption to be able to continue in business? Not on the government’s theory.

What if a municipality wanted to establish regular business hours in a tourist district to encourage shoppers to visit? Could stores whose owners observe Saturday or Sunday as a day of rest get an exemption? Not on the government’s theory.

Or take the real-life example of the Christian wedding photographer in New Mexico who didn’t want to photograph a lesbian commitment ceremony because she felt it would be promoting views she disagreed with. She lost in the New Mexico court and will likely appeal to the Supreme Court, but on the government’s theory, she couldn’t even have brought the case in the first place because her photography business can’t exercise religion, period.

This cramped view of the freedom of religion flies in the face of the traditional American understanding of giving individuals as wide a berth as possible for their religious practice — even when those individuals are interacting with the world at large. The First Amendment doesn’t only apply to sects like the Amish who wish to live separately from the world. It has equal force for those who live out their faith in the world. 


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