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Religious Freedom

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.

Featuring:

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

We've Said It – Now What? Genocide in the Middle East - Podcast

International & National Security Law Practice Group Podcast
Julian Ku, Nina Shea, Gregory H. Stanton, Jeremy A. Rabkin April 12, 2016

After much prodding from human rights advocates and congressional committees, Secretary of State John Kerry announced that the Obama administration considers ISIS guilty of "genocide." Why did it take them so long? The Obama administration may believe the rationale that Christian purges are mitigated by the ISIS offer of historic jizya (dhimmi tax) compliance from religious objectors. But field reports reveal that, under ISIS, the jizya option has been categorically rejected. What does the genocide designation do for targeted religious groups? Does it matter that particular religious groups are described by this designation? Should we now expect a very different policy in the Middle East?

Featuring:

  • Prof. Julian Ku, Maurice A. Deane Distinguished Professor of Constitutional Law, Faculty Director of International Programs and Hofstra Research Fellow, Maurice A. Deane School of Law at Hofstra University
  • Nina Shea, Director, Center for Religious Freedom, Hudson Institute
  • Dr. Gregory H. Stanton, President, Genocide Watch
  • Moderator: Prof. Jeremy Rabkin, Professor of Law, George Mason University School of Law

Little Sisters Go to Court: Arguments Heard in Little Sisters of the Poor Home for the Aged v. Burwell - Podcast

Religious Liberties Practice Group Podcast
Roger Severino March 24, 2016

Our expert gave our listeners background information on the Little Sisters of the Poor Home for the Aged v. Burwell case and reported on what transpired during oral argument. In the much-discussed case, the Court will decide an important challenge to the Affordable Care Act (ACA). At issue is the ACA’s contraceptive mandate, and whether it imposes a substantial burden on religious exercise or a violation of RFRA. Has the Department of Health and Human Services satisfied RFRA’s test for overriding a sincerely-held religious objection?

Featuring:

  • Roger Severino, Director, DeVos Center for Religion and Civil Society, The Heritage Foundation

Little Sisters Go to Court: Little Sisters of the Poor Home for the Aged v. Burwell Oral Argument Preview - Podcast

Religious Liberties Practice Group Podcast
Michael P. Moreland March 22, 2016

In the much-discussed Little Sisters of the Poor Home for the Aged v. Burwell case, the Court will decide an important challenge to the Affordable Care Act (ACA). At issue is the ACA’s contraceptive mandate, and whether it imposes a substantial burden on religious exercise or a violation of RFRA. Has the Department of Health and Human Services satisfied RFRA’s test for overriding a sincerely-held religious objection?

Featuring:

  • Michael P. Moreland, Mary Ann Remick Senior Visiting Fellow and Concurrent Professor of Law, University of Notre Dame