Federal Gov’t Joins Growing Tide of Judges: SCOTUS Should Hear Mandate Cases Increasing number of judges also condemn Mandate as “grave error”

Washington, D.C. – Last night, the federal government finally told the Supreme Court what everyone else been saying for months: the Court should take a case to decide whether the government can force religious ministries to participate in its contraceptive mandate. But in the government’s response to the Little Sisters of the Poor’s Supreme Court petition, it spends much of its time asking the Court not to hear the Little Sisters’ case and instead to hear a different case.

“What is the federal government afraid of?” asked Mark Rienzi, Senior Counsel at Becket and lead counsel for the Little Sisters of the Poor. “The government continues to insist that the Little Sisters help with its contraceptive delivery system, but doesn’t want to let them present their side at the Supreme Court. Just a few days ago the President told the Pope he would ‘stand with’ the Pope ‘in defense of religious freedom.’ Forcing nuns to violate their faith for no good reason is a very strange way to do that.” 

The government’s change of heart came the same day as three additional federal judges weighed in to expose the inherent flaws of the government’s mandate scheme. The judges—Judges Edith Jones, Priscilla Owens, and Edith Clement of the U.S. Court of Appeals for the Fifth Circuit—expressed their view in an opinion dissenting from their circuit’s refusal to reconsider its panel opinion against religious ministries challenging the mandate.

They recognized that other courts have committed “grave error” in accepting the government’s arguments, which boil down to little more than “simply disagree[ing] with the [ministries’] view of what Christian theology demands.” The judges ended with the poignant reminder that “[l]iberty of conscience” was the “foundation” for the “First Amendment’s religion clauses.” “Conscience is the essence of a moral person’s identity. Thomas More went to the scaffold rather than sign a little paper for the King.”

With these judges, there are now opinions from 18 federal appellate judges, including one federal circuit court of appeals, condemning the mandate. This growing tide has recognized the mandate scheme as “clearly and gravely wrong” because “it is not the job of the judiciary to tell people what their religious beliefs are.” Five judges sitting on the court that ruled against the Sisters confidently predicted that the government’s case “will not long survive” because Supreme Court would weigh in and reject a position that is “contrary to all precedent concerning the free exercise of religion.”

And now the government itself has joined the chorus of voices asking the Court to intervene. The government’s new position makes it is even more likely that the Court will choose to take one of the cases. The Court recently took action allowing it to consider all of the mandate petitions at the same time, and some Court-watchers predict it will announce its decision by early to mid November.

Becket and a legal team including former Solicitor General and leading Supreme Court advocate Paul Clement filed the cert petition on behalf of the Little Sisters, their health benefits provider Christian Brothers, and the Baptist ministries GuideStone, Reaching Souls, and Truett-McConnell College.

Becket  continues to lead the charge against the unconstitutional HHS mandate, winning a landmark victory at the U.S. Supreme Court in  Burwell v. Hobby Lobby.  It  currently represents  the  Little Sisters of the Poor, Mother Angelica’s  Eternal Word Television Network,  and Houston Baptist and East Texas Baptist Universities,  along with  many other  religious ministries. Five other petitions challenging the HHS mandate have already been filed at the Supreme Court and more are expected.

For more information or to arrange an interview with a Becket  attorney, please contact Melinda Skea at  media@becketlaw.org  or 202.349.7224.

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. For over 20 years, it has defended clients of all faiths, including  Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians. Its recent cases include three major Supreme Court victories: the landmark ruling in  Burwell v. Hobby Lobby, and the 9-0 rulings in  Holt v. Hobbs  and  Hosanna-Tabor v. EEOC, the latter of which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”