Written by Don Byrd
Politico reports on the brief filed with the U.S. Supreme Court by the Justice Department late Friday in the contraception mandate cases. The government argues the burden placed on religious owners of closely held corporations by the requirement to provide such coverage is not substantial enough to trigger First Amendment protection. The burden, they claim is too indirect.
In arguments filed late Friday, Justice Department lawyers told the court that an employer’s religious beliefs aren’t a legitimate reason to deny something as important as preventive care to an employee who is entitled to it under the health law.
“The connection is too indirect as a matter of law to impose a substantial burden” on employers’ right to practice their religion, the lawyers wrote in their opening argument defending the contraceptive requirement against Hobby Lobby Stores Inc.
Some courts have agreed that the burden on the corporate owners is too indirect to satisfy the Religious Freedom Restoration Act. Here is the District Court in the Hobby Lobby case (pdf) (subsequently overturned by the 10th Circuit)(citations removed):
Evaluating the “directness” factor here, the court concludes the Greens are unlikely to be able to establish a “substantial burden” on them within the meaning of RFRA. The mandate in question applies only to Hobby Lobby and Mardel, not to its officers or owners. Further, the particular “burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [Hobby Lobby’s] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff’s religion.” Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.”
