Federal Appeals Court Hands Victory to Religious Colleges, Commands HHS to Act Quickly to Fix Mandate

Editor’s note. The first part of this story is based on a very helpful release from the Becket Fund for Religious Liberty.

Kyle Duncan, General Counsel of the Becket Fund for Religious Liberty

Washington, D.C. — A federal appeals court in Washington, D.C. has handed Wheaton College and Belmont Abbey College a major victory in their challenges to the HHS mandate.  Last summer, two lower courts had dismissed the Colleges’ cases as premature.  On Tuesday, the appellate court reinstated those cases, and ordered the Obama Administration to report back every 60 days—starting in mid-February—until the Administration makes good on its promise to issue a new rule that protects the Colleges’ religious freedom.  The new rule must be issued by March 31, 2013.

“The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” said Kyle Duncan, General Counsel of the Becket Fund for Religious Liberty, who argued the case.  “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”

The court based its decision on two concessions that government lawyers made in open court. First, the government promised “it would never enforce [the mandate] in its current form” against Wheaton, Belmont Abbey or other similarly situated religious groups.  Second, the government promised it would publish a proposed new rule “in the first quarter of 2013” and would finalize it by next August. The administration made both concessions under intense questioning by the appellate judges.  The court deemed the concessions a “binding commitment” and has retained jurisdiction over the case to ensure the government follows through.

“This is a win not just for Belmont Abbey and Wheaton, but for all religious non-profits challenging the mandate,” said Duncan. “The government has now been forced to promise that it will never enforce the current mandate against religious employers like Wheaton and Belmont Abbey and a federal appellate court will hold the government to its word.”

While the government had previously announced plans to create a new rule, it has not yet taken the steps necessary to make that promise legally binding. Lower courts dismissed the colleges’ cases while the government contemplated a new rule, but the Court of Appeals for the District of Columbia Circuit decided the cases should stay alive while it scrutinizes whether the government will meet its promised deadlines. The court acted quickly, issuing Tuesday’s order just days after hearing lengthy arguments.

If a story written by Michael Doyle of McClatchy Newspapers is to be believed, last Friday’s 65-minute-long oral arguments before a three-judge panel of the D.C. Circuit Court of Appeals were “electrifying.” The plaintiffs are Belmont Abbey is a Roman Catholic College founded by Benedictine Monks. Wheaton College is a famous evangelical college.

Their cases were combined to challenge a provision of ObamaCare that requires employers to purchase health insurance for their employees that includes coverage for items and procedures, such as contraceptives, that they have moral or religious objections to. Their lawsuit was the first of the over 40 legal challenges to the law to reach the appellate level.

As noted in the Becket Fund for Religious Liberty release, there is growing skepticism in the courts regarding the Obama Administration’s so-called “safe harbor” provision. Facing a backlash of opposition to the HHS mandate, the safe harbor was created to delay enforcement against non-profit religious organizations while the government “considered” some future “accommodation.” It was under that provision that U.S. District Judge James E. Boasberg last July dismissed the lawsuit as premature.

However less than two weeks ago Federal Judge Brian Cogan ruled that a lawsuit from the Archdiocese of New York against the Obama administration’s HHS mandate may proceed. Judge Cogan also rejected the “premature” argument voiced by the Obama administration

Cogan wrote “the First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action.”

“There is no, ‘Trust us, changes are coming’ clause in the Constitution,” said the judge. “To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.”