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by Ryan Snow
The Federal Government issued two important statements on October 6, 2017, protecting religious freedom. The attorney general articulated twenty principles of religious freedom the government should respect, and the Department of Health & Human Services expanded exemptions for those who object to providing birth control on religious grounds. This is a tremendous victory for many religious groups, including the Little Sisters of the Poor, a group of Catholic Nuns who serve the elderly poor in over 30 countries and objected to providing some abortion-inducing drugs and contraceptives.
The Little Sisters sincerely believed that allowing the government to take over their plan and utilize it to deliver contraceptives implicated them in sinful behavior and made them morally complicit in the distribution of drugs. Accordingly, the Little Sisters declined to “opt-in” and sign a form that would change their plan and contract with the insurance provider. Under the Affordable Care Act, the Little Sisters could have been fined $70 million per year for non-compliance with the new law.
Fortunately, there was a better solution for both parties. As the Supreme Court explained in 2016, a resolution could be obtained where all parties would get what they wanted. The government admitted that it did not need to take over the Little Sisters’ plan to provide the contraceptives and could provide an exemption.
This new rule is a win for all sides. As legal counsel for the Little Sisters indicated, the rule strikes a “balance between contraceptive access and religious liberty” by retaining Obama’s contraceptive mandate but providing an expanded religious exemption. The rule takes effect immediately, paving the way for the Little Sisters’ case and others to be resolved, but the rule could be changed prior to December 5, 2017 when it is finalized.
While many view the rule as a win for all sides, not everyone sees it that way. The same day the regulations were issued, at least three parties, the State of California, the ACLU, and the State of Massachusetts filed suit against the government for issuing these regulations. They claim in their lawsuits that providing a religious exemption violates the First Amendment’s prohibition against a law respecting an establishment of religion.
However, there is a critical difference between establishing a religion and providing a religious exemption. The lawsuits brought by the ACLU, Massachusetts and California fail to appreciate this crucial distinction. The U.S. Supreme Court has explained that under the First Amendment the government “must take pains not to compel people to act in the name of any religion.” Thus, for example, government mandating that citizens pay tithes or money donations to any faith would be unconstitutional. But regulations allowing people of faith to refrain from acting for religious reasons is much different than government compelling religious action. Nearly a century ago the Supreme Court appreciated this distinction when it upheld a law exempting religious individuals from being drafted into the military. Another example of a religious exemption being constitutionally upheld involved the Church of Jesus Christ of Latter-Day Saints and its ability to choose who it would employ (read more in the blog series, Religious Freedom: What’s All the Fuss About?).
The courts should continue to recognize this distinction and uphold these regulations favoring religious exemptions.
Ryan Snow is a graduate of Brigham Young University - Idaho and SMU Dedman School of Law. He currently practices law in Texas and enjoys spending time with his family.
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