It’s a big year for the Free Exercise Clause. In addition to the Supreme Court’s sizable religious liberty docket this term, religious freedom cases have been simmering in the lower courts. One that deserves careful attention is Cedar Park Assembly of God v. Kreidler, in which a church is challenging a Washington State law forcing it to cover abortion and contraception in its insurance plans. Last month a 2–1 panel of the Ninth Circuit said the church lacks standing to sue. It was not the first time this case was considered by the Ninth Circuit—and hopefully will not be the last.

The plaintiff, Cedar Park church, holds pro-life beliefs and has over 180 employees to whom it provided health insurance that, as federally mandated under Obamacare, covered maternity care. For years it contracted with insurers for a plan that excluded coverage for abortion. But that changed in 2018, when Washington passed the Reproductive Parity Act that required abortion coverage for plans with maternity coverage. Cedar Park’s insurer, Kaiser Permanente, stopped accommodating abortion exclusions as a result. The church sued the state insurance commissioner and the governor in 2019, but their case was dismissed for lack of standing, based largely on the erroneous belief that Cedar Park still could have purchased comparable abortion-free insurance. On appeal for the first time, the Ninth Circuit reversed, noting that Kaiser Permanente had “reasonably understood the plain language of” the Parity Act to mandate abortion coverage.

When the district court was required to grapple with Cedar Park’s arguments on the merits, it ruled against them again, applying a widely-criticized Supreme Court case that five of the sitting Supreme Court justices have already agreed was wrongly decided. Employment Division v. Smith (1990) held that laws substantially burdening religious exercise can stand as long as they are “neutral” and “of general applicability.”

Perhaps Smith’s questionable ongoing viability and the current Court’s protectiveness of free exercise were the reason the Ninth Circuit, in a second appeal, returned to the issue of standing, this time contradicting its earlier judgment and ruling against the church.

The Ninth Circuit minimized the church’s harm by being forced to violate its beliefs, reasoning that the link between someone procuring an abortion and the church’s purchase of the insurance that funds that abortion was too remote. Judge Consuelo Callahan penned an articulate dissent arguing that the Ninth Circuit “got it right the first time around” as its second panel decision also conflicts with precedent in both the Supreme Court and other circuits, not to mention previous Ninth Circuit cases.

The Alliance Defending Freedom, which represents Cedar Park, petitioned the Ninth Circuit for a rehearing en banc earlier this month and focused on these conflicts. Since last week, eighteen states and a number of religious freedom advocates have submitted amicus briefs in support of the plaintiff. Whether or not the panel majority’s obtuseness on standing stemmed from desperation to avoid the merits, the case practically begs for reconsideration.

Just four years ago, the Court declined to overturn Smith outright despite a majority of the Court agreeing it was constitutionally unsound. This case illustrates Justice Neil Gorsuch’s point in his opinion concurring in the judgment in that case: “Smith committed a constitutional error. Only we can fix it. Dodging the question today guarantees it will recur tomorrow. These cases will keep coming until the Court musters the fortitude to supply an answer.” If the Ninth Circuit does not fix its manifest error, the Supreme Court should take the case at its earliest opportunity.