Blog Post

Victory for Nonprofits By Eric Baxter, Senior Counsel at the Becket Fund for Religious Liberty

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By Eric Baxter, Senior Counsel at the Becket Fund for Religious Liberty

On November 21, in Zubik v. Sebelius, a federal judge in Pennsylvania became the first to rule on the HHS Mandate’s so-called “accommodation” for nonprofit religious organizations that, based on their faith, cannot provide insurance coverage for contraception, sterilizations, and abortifacients. The outcome? An order that the government cannot enforce the Mandate—even via the “accommodation”—against Catholic Charities and other social services and educational organizations in the Dioceses of Pittsburgh and Erie.

Under the accommodation, the religious charities could have avoided directly providing the coverage simply by certifying their religious objection to their health plan administrator. But this would have “triggered” an obligation for the administrator to provide the coverage and still required the charities to provide their employees’ names and contact information. Thus, in the charities’ view, the accommodation would do nothing to reduce their moral complicity. And they used a great analogy to explain why providing their employee’s names to the plan administrator—which they have always done in the past—would be morally wrong under the accommodation:

[They] liken this . . . by analogy to a neighbor who asks to borrow a knife to cut something on the barbecue grill, and the request is easily granted. The next day, the same neighbor requests a knife to kill someone, and the request is refused. It is the reason the neighbor requests the knife which makes it impossible for the lender to provide on the second day.

That explanation was a knife to the government’s claim that the accommodation “requires virtually nothing” of the charities, an argument that the court said “trivialized” the charities’ sincerely-held religious beliefs.

The court also had little patience for the government’s argument that it has a “compelling government interest” to override the charities’ religious beliefs. Why then, the court asked, is there a complete exemption for “houses of worship”? If the government had truly compelling reasons, they would override everyone’s religious beliefs, not just the beliefs of those who worship outside of church. The court held that the accommodation unlawfully “entangles the Government into determining what constitutes ‘religion’” by deciding that religion inside a church deserves more protection than religion at the soup kitchen or in a homeless shelter.

The court’s opinion is well-written and well-reasoned, and carefully refutes the government’s arguments against religious organizations. It is well worth a read! (The real meat of the opinion is at pages 46-60).