Religious Non-Profits Win Injunction from Supreme Court in Aftermath of Hobby Lobby

Written by Don Byrd

After a close reading of the Supreme Court’s ruling in the Hobby Lobby case, many observers – myself included – interpreted certain passages of Justice Alito’s majority opinion to suggest the Court was preparing to rule against religious non-profit organizations in their separate litigation. Late last week, the Court proved us wrong by instead issuing an injunction (pdf) halting the administration’s accommodation process for Wheaton College, one of the plaintiffs making such an argument.

You may remember, religious nonprofits like Wheaton argue that filling out the required form to certify their status as a religious objector, while relieving them of the obligation to provide certain contraception coverage to employees, is still insufficient to protect their religious freedom because it forces them to participate in a process that will result in those employees gaining free access to such services by other means.

Why does that surprise some of us? Because in certain passages of the Hobby Lobby opinion, explaining why enforcement of the contraception coverage mandate against for-profit corporations is not the least restrictive means the government has to achieve its compelling objective as required by law, the Court pointed to the process by which religious nonprofits like Wheaton are accommodated as an example of a less restrictive alternative.

Here is a good example from Justice Alito’s opinion in Hobby Lobby (my emphasis):

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.

But apparently, that greater respect for religious liberty is still not necessarily a sufficient alternative. The Court’s injunction in the Wheaton case indicates that the government will not likely succeed in arguing that accommodation process established by the administration for religious nonprofits passes the test, despite serving as a less restrictive example in Hobby Lobby.

Justice Sotomayor, dissenting, was not too happy with the Court’s action. Justices Ginsburg and Kagan joined her.

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

No case involving the objection of religious nonprofits has yet properly reached the Supreme Court for a full hearing on the merits. Stay tuned.