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October 13 2015

The Definitive Guide to Cert-Stage Amicus Briefs in Little Sisters of the Poor, et al. v. Burwell

National Review

The cert-stage briefing in Little Sisters of the Poor, et al. v. Burwell will wrap up shortly, which means the Court will soon decide whether to hear the case.

Little Sisters of the Poor, of course, is one of several cases challenging the Obama administration’s mandate forcing various religious entities to provide contraceptives through their insurance plans. Although the Solicitor General tapped another pending case, Roman Catholic Archbishop of Washington v. Burwell, as its preferred vehicle for cert, no case has attracted as much support as Little Sisters of the Poor. (Perhaps the Solicitor General doesn’t like the optics of jackbooting a group of nuns.) Thus, the amici include rule-of-law groups like the Cato Institute and Independent Women’s Forum alongside religious groups that have been targeted by the rule.

If you haven’t had a chance to read the 15 amicus briefs filed in support of cert, I’ve saved you the trouble. Here are some of the best.

An outstanding brief filed by Gibson, Dunn & Crutcher appellate specialist Tom Hungar argues that the Tenth Circuit wrongly applied rational basis review to the parties’ Free Exercise claims instead of strict scrutiny. As the brief explains, the “accommodation” is neither neutral nor generally applicable because it facially discriminates between “churches” and religious nonprofits. In addition, it makes a mandate exemption “categorically unavailable” to certain types of religious employers. This brief was filed on behalf of the Carmelite Sisters of the Most Sacred Heart of Los Angeles, Religious Sisters of Mercy of Alma, Michigan, and School Sisters of Christ the King.

Another brief dissects the Tenth Circuit’s “substantial burden” analysis. Filed by WilmerHale on behalf of the Christian Legal Society, Association of Christian Schools International, The Lutheran Church—Missouri Synod, and the Institutional Religious Freedom Alliance, this brief argues that the Tenth Circuit “reviewed Petitioners’ religious reasoning and the correctness of their religious belief . . . as if courts have any competence to evaluate moral complicity.”

Three briefs illustrate the substantial-burden point from different religious perspectives. Several law professors (represented by McGuireWoods) explain why commandeering the Little Sisters’ health plan for its own purposes creates a substantial burden on Catholic institutions. A brief filed on behalf of several Southern Baptist amici (the Southern Baptist Theological Seminary and its president, Dr. R. Albert Mohler, Jr., the Ethics & Religious Liberty Commission, and the International Mission Board) explains why assisting with providing abortion-causing contraceptives creates a substantial burden on GuideStone, the Southern Baptist entity that provides insurance for clergy and employees of other Southern Baptist entities.

The third is an outstanding brief filed on behalf of Orthodox Jewish rabbis. It makes the point that many religions have practices and beliefs with great moral significance that might seem “unconvincing” to others. For Orthodox Jews, for instance, “writing, cooking, traveling a great distance, or using electricity on the Sabbath; creating hybrid plants or animals; wearing a garment made from both wool and linen; shaving with a razor; or cutting one’s sideburns too short can constitute sinful behavior.” But if a court thinks it is empowered to evaluate the moral weight of religious objections, it “might wrongly conclude that requiring a religious individual to wear a particular shirt only imposes a slight burden on religious exercise and deny a RFRA accommodation.”

I filed an amicus brief with Eileen J. O’Connor, former Assistant Attorney General for the Department of Justice’s Tax Division and partner at Pillsbury Winthrop Shaw Pittman, on behalf of the Dominican Sisters of Mary, Mother of the Eucharist, Sisters of Life, and the Judicial Education Project. Our brief argues that HHS wrongly relied on irrelevant tax return filing requirements to distinguish between the level of religious freedom different entities receive under the accommodation.

Along the same lines, former Supreme Court clerk and law professor Erin Morrow Hawley filed a brief for the Independent Women’s Forum arguing that HHS is violating RFRA by distinguishing between different religious groups. As Hawley argues, “HHS’s discriminatory dictate comes from an agency that has neither the authority nor the expertise to decide whether nuns—or any other religious employer—are sufficiently ‘religious.’ Such a determination would be highly suspect were it to come from Congress; it is unquestionably so where it comes from an agency with no religious expertise.”

A brief filed on behalf of the Christian Missionary Alliance and several affiliated organizations by O’Melveny & Myers and the Liberty Institute makes a similar argument: The very existence of a bifurcated exemption/accommodation regime violates RFRA. “In HHS’s view, non-churches which shared identical religious beliefs did not deserve the same protection. Instead, they merited only an accommodation which required them to authorize another entity to use their healthcare plans to provide contraceptive coverage in their stead—an action that the religious objectors consider morally tantamount to providing the objected-to contraceptives themselves.”

Last but surely not least, the Cato Institute’s brief gets a prize for finding a silver lining in King v. Burwell (2015). Ilya Shapiro and law professor Josh Blackman argue that crafting an administrative religious “accommodation” to the HHS mandate lies outside the interpretive authority and “expertise” of HHS, a “major question” that Congress did not delegate to HHS. Since HHS had no authority to create an “accommodation,” the Little Sisters and other similarly-situated parties “must simply be exempted from the ‘preventive care’ mandate[.]” In addition to making an innovative and persuasive argument, the brief also manages to cite Blackman’s 2013 book Unprecedented and a 1986 law review article by none other than then-Professor Stephen Breyer.

No amicus briefs supported the government’s position.

This case should lead us to ask: Why does HHS care so much about forcing nuns to sign a form?

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Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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