By Sarah Posner / The American Prospect
This is an abbreviated version of the story. For the full story, click here.
Abortion and contraception opponents have sued to block the Affordable Care Act’s contraception mandate on the grounds that it violates their freedom of religion, but the challenge now pending before the Supreme Court actually undermines religious liberty, argues University of Virginia law professor Douglas Laycock in a recent amicus brief before the court.
In pointed language, Laycock calls the religious nonprofits’ arguments a “mortal threat” to the future of religious freedom. A win by the plaintiffs, he writes, “would lead to absurd results that would discredit” the Religious Freedom Restoration Act (RFRA) “and the cause of religious liberty.” It could lead to, he argues, the end of religious exemptions if an overbroad ruling makes it impossible for legislators and government agencies to carve out reasonable ones.
Laycock’s brief is significant because he has long been seen as one of the staunchest and most thoughtful advocates for religious exemptions from state and federal mandates, including, recently, for religious objectors to same-sex marriage. He has written that the Supreme Court’s 2014 decision in Hobby Lobby v. Burwell—in which the Court ruled that the contraception mandate violated the religious freedom rights of a closely held corporation—was correctly decided. He had authored an amicus brief in that case in support of Hobby Lobby’s position. But the nonprofit plaintiffs have a more difficult case to prove before the high court than the for-profit companies did.
Laycock wrote the new amicus brief on behalf of the Baptist Joint Committee for Religious Liberty, one of the organizations weighing in on the reach of RFRA in Zubik v. Burwell, the group of cases challenging the health-care law, which the Supreme Court will hear next month. The Court has consolidated seven cases brought under RFRA by a cluster of religious nonprofits that includes the Archdiocese of Washington, the anti-abortion group Priests for Life, several evangelical universities, and the order of nuns known as the Little Sisters of the Poor.
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Even if the remaining eight justices deadlock on the the question of whether the health-care law imposes a substantial burden on religious freedom Zubik could end up being decided in the government’s favor. That assumes that Justice Anthony Kennedy, the swing vote in Hobby Lobby, remains consistent. In a separate concurring opinion in Hobby Lobby, Kennedy hinted that the accommodation was the least-restrictive way for the government to achieve its objective of ensuring copay-free coverage for contraception.
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