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750 to 1: Time for a Do-Over in Notre Dame By Daniel Blomberg, Legal Counsel of the Becket Fund for Religious Liberty

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Ryan Colby 202-349-7219

By Daniel Blomberg, Legal Counsel of the Becket Fund for Religious Liberty


That’s what Judge William Pryor of the Eleventh Circuit called the Seventh Circuit’s narrow, 2-1 decision in University of Notre Dame v. Sebelius, an HHS Mandate case. Judge Pryor offered this succinct take-down in his concurrence to a decision that saved the world’s largest religious media organization from choosing between crushing fines or violating its faith. But unlike that media ministry (the nun-founded Eternal Word Television Network), the University of Notre Dame was left unprotected. Indeed, as we explained in an amicus brief filed Wednesday, Notre Dame is the only religious ministry nationwide that has been left out in the cold:

[O]f the 36 non-profit religious ministry cases in which the question of preliminary relief has been decided, 33 have granted such relief and only three denied it. . . . Further, two of the three denials are accompanied by an injunction pending appeal that protects the ministries while they prosecute their case, meaning that [the Seventh Circuit’s ruling] is the only one in the country to leave a religious ministry without any protection against the mandate. . . . If the split is measured in plaintiffs rather than cases, the numbers are even more overwhelming: counting the three class action lawsuits, more than 750 non-profit plaintiffs have received protection, while only one has not. The Seventh Circuit’s decision below is an extreme outlier.

The Seventh Circuit’s decision is not just an extreme outlier, it also runs afoul of Supreme Court precedent. The decision essentially ignored the just-released contrary conclusion the Supreme Court reached in Little Sisters of the Poor, which the Supreme Court later affirmed repeatedly in Burwell v. Hobby Lobby and Wheaton College v. Burwell. That implicit rejection of the Seventh Circuit’s ruling is part of the reason why most courts, like Judge Pryor, have found the ruling “wholly unpersuasive.”

So now Notre Dame is asking the Supreme Court to order the Seventh Circuit to reconsider its decision in light of Hobby Lobby and Wheaton College. This is a very modest request—Notre Dame is not demanding that the Supreme Court issue an opinion stating that Notre Dame wins, but merely an order that the Seventh Circuit try again with the benefit of the Supreme Court’s newest guidance. As we explain in our amicus brief, that’s a request that the Court should grant.