Who decides if a law restricts a religious practice? Notre Dame case may provide the answer

May 27, 2015, Deseret News

The question of what the government can do to require religious institutions that are not houses of worship to cooperate with the contraceptive mandate has spawned a raft of legal challenges in the courts. Of 58 nonprofit organization lawsuits filed so far, The Becket Fund for Religious Liberty noted on its website, 29 injunctions against HHS have been granted, with only six denied, including Notre Dame’s. Eleven other cases have been dismissed on various procedural or other grounds, the group said.

Some private companies, which couldn’t take advantage of the exemption for nonprofit religious organizations, also objected to the mandate based on the religious beliefs of the employer. The Becket Fund reported that 49 for-profit firms filed lawsuits seeking exemptions from the mandate.

But Eric Rassbach, deputy general counsel at the Becket Fund, has a different interpretation of RFRA. Though not representing Notre Dame in this case, Becket has worked with other nonprofit and for-profit organizations on similar cases, most notably Hobby Lobby.

“We disagree with (Posner’s) statement,” he said. “It is up to Catholic institutions to decide whether doing a particular act violates Catholic beliefs and Jewish institutions to decide whether doing a particular act violates Jewish beliefs. It is emphatically not the province of civil courts to decide how religious law ought to be applied to particular situations.”