HBU Says the Feds Are Forcing It to Sin (and These Uber-Conservative Judges Agree)

We've written before how the U.S. Fifth Circuit Court of Appeals, once a trail-blazing collection of judges that heard some of the nation's most important civil rights cases, over time morphed into one of the most staunchly conservative federal appeals courts in the country, thanks in large part to judges appointed to the bench during the Reagan and George W. Bush presidencies.

Every once and a while, an opinion drops that proves, in mind-boggling fashion, just how conservative some of those Fifth Circuit judges really are.

Take, for example, the recent court battle over contraception coverage. In late June, a panel of Fifth Circuit judges ruled that Houston Baptist University can't block the feds from providing its employees birth control coverage just because the school's religious leaders harbor a “moral” objection to certain types of contraception they wrongly liken to abortion. Supporters of the Affordable Care Act's birth control mandate say it's telling that a panel of judges from the Fifth Circuit, of all courts, wouldn't buy the school's argument, which goes something like this: 
  • HBU must notify the federal government if it won't provide contraception for employees due to religious objections.
  • Yet in doing so, HBU has alerted the feds that they need to step in to provide birth control coverage, since HBU won't do it. 
  • Ergo, HBU has become part of the sin (the sin being reproductive healthcare). 
This summer HBU and other schools fighting for the “religious freedom” to block the federal government from providing women with reproductive healthcare hired some big legal guns (including the same folks that won the Hobby Lobby case last year), and asked the U.S. Supreme Court to hear their case. They also asked that entire Fifth Circuit court reconsider their arguments.

On Thursday, the majority of Fifth Circuit judges (11 out of 15) agreed with the court's earlier opinion to toss the case. In that opinion, Judge Jerry Smith (who, it should be noted, once called feminists a “gaggle of outcasts, misfits and rejects”—that's how conservative this court is) wrote that the Religious Freedom Restoration Act, which HBU cited as the basis for its legal challenge, “does not entitle them to block third parties from engaging in conduct with which they disagree.”

Judges Edith Jones, Edith Brown Clement, Priscilla Owen and Jennifer Walker Elrod (all Reagan or W appointees) beg to differ. In a dissent that sounds more like fiery sermon from the pulpit than a legal opinion, the judges say their colleagues' decision to toss the case denies religious institutions the right to freely exercise their faith.

It's worth remembering that we're not even talking about whether HBU and other religious nonprofits have to provide their employees with birth control coverage. Rather, this case is about whether religious freedom in America will be construed to mean that religious nonprofits have the right to block people from receiving certain benefits from the federal government simply because they harbor a faith-based objection to those benefits. 

Yet here is how the dissenting judges portrayed the issue:
“How ironic that this most consequential claim of religious free exercise, with literally millions of dollars in fines and immortal souls on the line, should be denied when nearly every other religious freedom claim has been upheld by this court. How tragic to see the humiliation of sincere religious practitioners, which, coming from the federal government and its courts, implicitly denigrates the orthodoxy to which their lives bear testament. And both ironic and tragic is the harm to the Judeo-Christian heritage whose practitioners brought religious toleration to full fruition in this nation. Undermine this heritage, as our founders knew, and the props of morality and civic virtue will be destroyed.” 
Essentially, the schools have argued that the birth control exemption afforded religious nonprofits poses a “substantial burden” on how they exercise their religion. Specifically, they are arguing that filling out a form or writing a brief letter to the feds letting them know they're not fulfilling the ACA's birth control mandate (hell, from the sound of it, a phone call or even smoke signal might do) is literally against their religion.

It's an argument at least four judges on the Fifth Circuit agree with. In their dissent, they argue that in tossing the case the court has reversed its longstanding record of upholding religious liberty. It lists these cases:
“The nine claims involved possession of eagle feathers for Native American worship; a Sikh's wearing a 3-inch kirpan (dagger); a Native American prisoner's possession of a lock of hair; a Muslim inmate's beard; long hair on a Native American high school student; Santeria practitioners' keeping and slaughtering four-legged animals; kosher food in prison; worship in a particular prison setting; and possession of stones by Odinists in prison.”
Of course, there's one little thing that distinguishes HBU's case from the others. While those other cases were, in fact, about government recognizing and accommodating someone's religious beliefs, the plaintiffs in those cases weren't fighting to block government services for others because of those beliefs. 
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Michael Barajas
Contact: Michael Barajas