Religion and the Law

Zubik v. Burwell - Post-Argument SCOTUScast

SCOTUScast 4-20-16 featuring Roger Severino
Roger Severino April 20, 2016

On March 23, 2016, the Supreme Court heard oral argument in Zubik v. Burwell, the lead case in a consolidated series, with the other petitioners including Priests for Life, Southern Nazarene University, Geneva College, Roman Catholic Archbishop of Washington, East Texas Baptist University, and Little Sisters of the Poor Home for the Aged.

The Patient Protection and Affordable Care Act of 2010 (ACA) requires that group health plans and health insurance issuers provide coverage for women’s “preventative care,” or face financial penalties. Although the ACA does not define preventative care, the U.S. Department of Health and Human Services (HHS), relying on the Institute of Medicine, determined that the term encompassed, among other things, all FDA-approved contraceptive methods, including drugs and devices that could induce an abortion. Although the government exempted “religious employers” from this mandate, the exemption was narrowly defined and did not extend to petitioners. The government did, however, offer non-profit entities such as petitioners an “accommodation.”  

Under the accommodation, which was modified in the course of litigation, an objecting religious nonprofit entity complies if it provides the government with a notice that includes “the name of the eligible organization,” its “plan name and type,” and the name and contact information for any of the plan’s third-party administrators (TPAs) and health insurance issuers. Upon receiving the notice, the government notifies the objecting entity’s insurance company or TPA, which then must provide payments for the requisite contraceptive products and services. A number of objecting non-profits sought relief in various federal courts, arguing that the accommodation violated the Religious Freedom Restoration Act (RFRA) of 1993. The resulting litigation produced a series of fractured opinions and a split in the Courts of Appeals, with non-profit religious organizations prevailing in the Eighth Circuit but losing in a number of others.

After imposing a brief injunction on enforcement against petitioners while it considered various petitions for certiorari, the U.S. Supreme Court granted a number of petitions and consolidated the cases for oral argument on the following question: whether the HHS Mandate and its “accommodation” violate RFRA by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the Government has not proven that this compulsion is the least restrictive means of advancing any compelling interest. On March 29, the Court also issued a detailed order requiring the parties to brief “whether and how contraceptive coverage may be obtained by petitioners'’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

To discuss the case, we have Roger Severino, who is Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

Religious Liberty in the Armed Forces - Podcast

Religious Liberties Practice Group Podcast
Michael Berry April 18, 2016

The Court of Appeals for the Armed Forces recently granted review in United States v. Sterling, in which it will address, for the first time, the nature and scope of Religious Freedom Restoration Act’s applicability within the military. Marine Corps Lance Corporal Monifa Sterling was convicted at a court-martial for refusing to remove a Bible verse she taped to her computer in her workspace. Our expert, along with former U.S. Solicitor General Paul D. Clement, serves as co-counsel for Ms. Sterling, and explained Sterling’s potential significance to religious liberty within the military. Our expert also discussed other significant and recent developments in the field of military religious liberty, such as the case of U.S. Navy chaplain Wes Modder, who faced career-ending punishment after offering pastoral counseling in accordance with his denomination’s teaching and tenets.


  • Michael Berry, Senior Counsel and Director of Military Affairs, First Liberty Institute

Zubik v. Burwell (Little Sisters of the Poor case)

Short Video featuring Carrie Severino
Carrie Severino March 21, 2016

Carrie Severino of the Judicial Crisis Network explains the dispute concerning the contraceptive mandate in the case Zubik v. Burwell. Petitioners objecting to the contraceptive mandate include Bishop Zubik, Priests for Life, the Little Sisters of the Poor Home for the Aged, East Texas Baptist University, Southern Nazarene University, Geneva College, and the Roman Catholic Archbishop of Washington.  HHS asserts that the accommodation offered to the petitioners satisfies the governmental interest in providing contraceptive care to women employees while not violating the religious beliefs of their employers.  The petitioners disagree.

Federalism and Religious Liberty - Event Audio/Video

2016 Annual Western Chapters Conference
John C. Eastman, Marci A. Hamilton, Carlos T. Bea, Joel Ard February 17, 2016

How should federalism affect “moral” issues like abortion, traditional marriage, and state RFRA laws? What about the intersection of equal protection and religious liberties? Should pro-life state attorneys general, for example, file lawsuits against abortion providers like Planned Parenthood? Is religious faith and morality inherently in tension with fidelity to the rule law?

This debate was part of the 2016 Annual Western Chapters Conference at The Ronald Reagan Presidential Library in Simi Valley, CA on January 30, 2016.

Federalism and Religious Liberty

  • Prof. John Eastman, Dale E. Fowler School of Law, Chapman University
  • Prof. Marci Hamilton, Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University
  • Moderator: Hon. Carlos Bea, U.S. Court of Appeals, 9th Circuit
  • Introduction: Mr. Joel Ard, Member, Foster Pepper PLLC

The Ronald Reagan Presidential Library
Simi Valley, CA

Federalism and Religious Liberties - Event Audio/Video

2016 Annual Florida Chapters Conference
Carl H. Esbeck, William P. Marshall, Michael P. Moreland, Timothy Osterhaus, Nathan A. Adams February 03, 2016

This panel will address the religious rights of persons and corporate entities in the context of the same sex marriage rulings, threats to not-for-profit status, cake baking, and other current areas of uncertainty. The panel will also discuss appropriate Federal/Florida roles and possible distinctions between protection under the law and civil disobedience in the context of religious liberty.

This panel was part of the 2016 Annual Florida Chapters Conference at Disney's Boardwalk Inn in Lake Buena Vista, FL on January 22-23, 2016.

Federalism and Religious Liberties

  • Prof. Carl H. Esbeck, R.B. Price Professor Emeritus of Law/Isabelle Wade & Paul C. Lyda Emeritus of Law, University of Missouri School of Law
  • Prof. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
  • Prof. Michael P. Moreland, Mary Ann Remick Senior Visiting Fellow and Concurrent Professor of Law at University of Notre Dame
  • Moderator: Hon. Timothy Osterhaus, Florida First District Court of Appeal
  • Introduction: Dr. Nathan Adams, Holland & Knight LLP

Disney's Boardwalk Inn
Lake Buena Vista, FL