A notoriously conservative federal court has ruled that several religious institutions aren’t being oppressed by the process the federal government has created for them to opt out of providing birth control coverage. That’s a mouthful. Let me put it more simply: an ultra-conservative appeals court has directed a group of religious non-profits to stop whining, because no one is making them do anything.
The stop-whining order, which you can read in full here, was issued from the 5th U.S. Circuit Court of Appeals in New Orleans and first spotted by Greg Lipper, a litigator at Americans United for the Separation of Church and State. The lawsuit in question was brought by a bunch of religious non-profit institutions: University of Dallas, East Texas Baptist University, Houston Baptist University, Westminster Theological Seminary, the Catholic Diocese of Beaumont, and two Texas-based divisions of Catholic Charities.
Basically, the religious institutions are mad because the Affordable Care Act’s new rules require them to submit a two-page form opting out of providing contraception coverage for their employees. In their lawsuits, they argued that’s a violation of the Religious Freedom Restoration Act, which is meant to protect free exercise of religion.
This is the same argument that University of Notre Dame tried to make, without success: that not only should they not have to cover birth control, they shouldn’t even have to do anything to opt out of covering it. And like the 7th Circuit in Chicago did with Notre Dame, the 5th Circuit ruled that the religious institutions aren’t really being asked to do anything at all, and they’re definitely not being religiously oppressed. The ACA rules say that if a religious institution refuses to cover birth control and opts out, the
feds insurance company will cover it directly. That’s not a violation of religious freedom, the court wrote:
[T]he acts the plaintiffs are required to perform do not involve providing or facilitating access to contraceptives, and the plaintiffs have no right under RFRA to challenge the independent conduct of third parties. Because the plaintiffs have not shown that the regulations substantially burden their religious exercise or, in University of Dallas, have not demonstrated a substantial likelihood of doing so, we need not reach the strict-scrutiny prong or the other requirements for an injunction.
The 5th Circuit is same federal court that always rules in favor of Texas’ most draconian abortion restrictions. It’s fair to call it one of the more conservative courts in the country, which is why this ruling is so surprising; the ruling itself was written by Justice Jerry Edwin Smith, who was appointed by Ronald Reagan.
This is a surprise, but, for once, a good one.
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