Bench Memos

Law & the Courts

Pope Posner

On remand from the Supreme Court in light of last year’s Hobby Lobby ruling, a Seventh Circuit panel recently held oral argument again on the University of Notre Dame’s challenge to the Obama administration’s so-called “accommodation” on the HHS mandate. Unfortunately, Judge Richard A. Posner again lived down to form.

The Supreme Court has long made crystal-clear that it is not the business of the courts to decide which adherents of a particular faith correctly understand the tenets of that faith. As the Court stated in Thomas v. Review Board (1981):

The Indiana court also appears to have given significant weight to the fact that another Jehovah’s Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was “scripturally” acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill-equipped to resolve such differences in relation to the Religion Clauses. One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here, and the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.

There is no question that this principle, first expounded in the Free Exercise context, applies equally under the federal Religious Freedom Restoration Act. Indeed, the Court specifically made clear in Hobby Lobby that the principle applies fully to religious beliefs about improper complicity in evil:

The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.

Moreover, in Thomas v. Review Bd., we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent.…

Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to determine” whether the line drawn reflects “an honest conviction,” and there is no dispute that it does. [Citations and footnote omitted.]

Somehow none of this stopped Posner from repeatedly challenging Notre Dame’s attorney about whether Notre Dame’s objection to the accommodation really reflected “Catholic doctrine.” In direct defiance of Thomas v. Review Board, Posner thought it relevant that “a number of Catholic universities and colleges, like Georgetown and DePaul and Boston College, signed the form and left it at that” and are “not bothered by what you’re bothered by.” (Oral argument, roughly minutes 32-35.) As incoherently, Posner asserted in the rebuttal portion of Notre Dame’s argument (around the 1:39 mark) that the positions of these other Catholic colleges had some bearing on “how important [Notre Dame’s religious belief] is relative to the government interest.” 

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