The Corner

Conestoga and Hobby Lobby—the Aftermath Begins

Lots of people have asked what happens next after yesterday’s Supreme Court decision in favor of religious freedom for Conestoga (my clients) and Hobby Lobby.

Already this morning we are getting some answers, and it is good news for those of us who will continue fighting Obamacare’s abortion-pill mandate.

Beyond Conestoga and Hobby Lobby, several other family-business cases against the mandate were sitting on the Court’s desk waiting to be resolved.

This morning the Supreme Court denied review in all the cases the family businesses had won outright: the Newland and Grote families, who I represent (Grote is consolidated with Korte in the Seventh Circuit). And it “GVR’d” the cases where the government had won all or part of the decision (Autocam — Sixth Circuit, and Gilardi — D.C. Circuit) (a GVR grants review, vacates the decision, and remands for further proceedings consistent with ConestogaHobby Lobby).

This is significant beyond a mere matter of housecleaning. Not only is it the first step towards making the other cases consistent with the Hobby Lobby–Conestoga decision, but it has ramifications beyond that decision.

Most important, it has on impact on the question of whether the mandate is supported by a “compelling interest.” Justice Alito’s majority opinion casts serious doubt on whether the government has such an interest, since Congress itself deemphasized the mandate and HHS applies it so haphazardly. But the Supreme Court ultimately decided not to decide that issue. Some commentators have interpreted that dodge to suggest maybe there is a compelling interest for the mandate.

That’s a less viable position today. In not only Hobby Lobby, but in Newland from the Tenth Circuit (the first injunction ever granted against the mandate), and Grote and Korte from the Seventh Circuit, the Courts of Appeals affirmatively concluded that the mandate is not supported by a compelling interest. This morning’s orders denying review in those cases leave in place this circuit precedent.

Moreover, the D.C. Circuit found the mandate lacks a compelling interest in the Gilardi case, but it also held that companies cannot exercise religion (while their owners can). The Supreme Court’s GVR in Gilardi will cause the D.C. Circuit to affirm a family business’s full ability to assert religious claims, but it should not disturb the D.C. Circuit’s ruling that the mandate lacks a compelling interest.

In contrast, in circuits where the government won the case below against a family business, those courts never reached the issue of whether the mandate has a compelling interest. Those decisions have been vacated and remanded, but those courts will not need to reach the compelling-interest issue in those cases either, because we now know the mandate violates religious freedom by failing the least-restrictive-means test.

Thus the Supreme Court’s decision not to rule on the mandate’s compelling interest is not a sign that it meets that test. It is a recognition that the Courts of Appeals have reached a consensus finding no compelling interest, and thus the Supreme Court has no need to decide that issue.

This consensus will, in turn, benefit the non-profit cases. Those cases will have a deferential substantial-burden standard from the Hobby Lobby–Conestoga decision. But they will not then move to the least-restrictive-means test; they can argue the mandate has no compelling interest. And in circuits that have already decided that issue, such as the Seventh, Tenth and D.C. Circuits, the mandate will fall automatically at that stage of the analysis. The issue of whether the so-called accommodation is a least restrictive means of furthering the government’s interest will never be broached.

This basic reasoning seems to be why, as Ed Whelan reported, both the Eleventh and Tenth Circuits ruled yesterday afternoon (after the Supreme Court ruling), for EWTN and for the Catholic Diocese of Cheyenne Wyoming and Wyoming Catholic College among others, that non-profit groups are entitled to injunctions pending appeal against the mandate’s so-called accommodation.

— Matt Bowman is senior legal counsel with Alliance Defending Freedom at its Center for Life in Washington, D.C.

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