Nel's New Day

May 18, 2016

‘Religion’ Allows Escape from Contracts

Groups continue to use ‘religious liberty’ in an escape from legal obligations through denying women cost-free contraception and expelling a student from school. 

The fight over women’s contraception isn’t over, but it’s been postponed because of Antonin Scalia’s death. In their continued manic desire for power, traditional religious institutions pursued the issue of cost-free contraception for women to the Supreme Court where a non-decision was issued earlier this week. In Zubik v. Burwell the eight justices recently sent back seven cases they heard collectively in March plus another six cases that the court had not agreed to hear. Six lower courts were ordered to issue new rulings based on questions that the court left undecided.

The question in the lawsuit was whether non-church organizations have the right to be exempt from contraceptive mandates in the Affordable Care Act, as Hobby Lobby claimed—and won—in 2014.  The case wasn’t even about whether these protesting religious corporations should have to provide any contraception; they all opposed just filling out a form saying that they wouldn’t provide the contraception in order for the government to cover the cost of women’s contraception. A court suggestion for compromise is that the non-church groups’ insurance companies provide insurance without contraception and notify that employees that they will provide free contraception not subsidized by the non-church groups.

Even worse, the denial of providing contraceptives uses lay opinion rather than scientific fact because of Hobby Lobby. Among denied contraceptives are intrauterine devices and emergency contraceptive medication which simply impedes ovulation or fertilization of the egg. Basically, the groups are doing whatever they can to block women getting contraception.

With its opinion, the court let government pay for contraception and exonerate non-profits from the risk of penalties until the lower courts rule in a way that satisfies the Supreme Court. Not determined by the court’s opinion, however, are whether the Affordable Care Act contraceptive mandate violates the Religious Freedom Restoration Act, whether the government had a “compelling interesting” in mandating free contraceptives, and whether the method they used with the religious groups to provide cost-free contraceptives was the “least restrictive means.” In taking this inaction, the court hoped that the parties could “resolve any outstanding issues between them” but admitted that “areas of disagreement” between the two sides may continue to exist.

Five of the six lower courts had ruled in favor of the ACA mandate. A deadlock of 4-4 would have ruled that the law be interpreted differently according to the regions of these courts. Gretchen Borchelt, vice president of the National Women’s Law Center, expressed disappointment with the court’s indecision. She said, “Eight of nine circuit courts of appeals have already upheld women’s access to birth control no matter where they work.” The 8th Circuit court is the only one ruling against the accommodation that the government made to religious groups. A three-judge panel ruled  that the ACA mandate “substantially burdened” Dordt College’s free exercise of religion. In addition to Iowa, the decision covers Arkansas, Minnesota, Missouri, and both Dakotas.

Fortunately, the high court’s opinion does not set precedent, and lower courts may not solve the problem for the high court. Justices Sonia Sotomayor and Ruth Bader Ginsburg issued a separate but concurring opinion telling lower courts that the action does not endorse a proposal put forward by the protesting groups that women must have separate policies for contraceptive coverage. ACA protesters to the ACA are viewing the court’s opinion as a victory for their side, but the opinion seems to tell lower courts not to block the government from implementing its regulations to “ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA approved contraceptives,'” during the pendency of the litigation:

“Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA approved contraceptives.'”

At this time, almost all the cases have injunctions to keep federal agencies from enforcing their regulations. The question is whether these injunctions will be lifted in light of the court’s opinion. Groups refusing to provide contraception can also find insurance plans that also refuse to provide contraception, based on that company’s “religious beliefs.”  Yet organizations may not notify the government of its insurance company, which leaves female employees without cost-free contraception. Self-insured plans also cause difficulty for women who want contraceptives because the federal government won’t know which groups insure their employees in this way. Basically, the groups want to not only refuse women contraception but also hide whether they can get this right that a federal law provides.

In another case of “religious liberty,” an appeals judge ruled that St. Thomas High School doesn’t have to obey its own contracts because it is a “religious institution. The altercation started when a teacher failed to call the parents in the evening about a grade dispute because, as he told the student, he was preparing a “romantic” night for his wedding anniversary. The parents called the teacher’s explanation sexual harassment—“inadequate, irrelevant, [and] sexually demeaning.”

The Texas school expelled the student because of its policy permitting expulsion from “actions by a parent/guardian or other person responsible for the student which upbraids, insults, threatens or abuses any teacher, administrator, coach or staff member of the school.” Parents claimed a breach of contract because the student wouldn’t educate their son, and the school claimed that the student handbook is a part of the contract allowing them to expel the student.

The case could have been a simple contract dispute, but St. Thomas argued their action came from “ecclesiastical abstention doctrine,” a First Amendment doctrine limiting the courts’ ability to decide cases involving a religious body’s “doctrines, membership, discipline, and internal affairs. The doctrine prevents the courts from even hearing a dispute in the first place, and the appeals court agreed. The court did admit that “churches, their congregations, and their hierarchies exist and function within the civil community … are amenable to rules governing civil, contract, and property rights in appropriate circumstances.”

At least one other Texas case allowed parents to use the doctrine in refusing a student because the education has a “spiritual” element, similar to accepting a church member. The difference in this case is that the dispute was a secular contract dispute, not a federal agency forcing a Catholic school to admit an unwanted student.

If religious schools are permitted to violate all their contracts because of the “ecclesiastical abstention doctrine,” they may lose credibility in their agreements with everyone. People and companies are willing to perform services and sell products to others because breaching the contracts leads to satisfaction in the courts. If, however, St. Thomas shows that religious groups do not need to fulfill any contracts, including educating students, their action may lead to lack of confidence in their institutions, reduced student membership in schools, and inability to work with vendors.

St. Thomas could probably have won their case if they had stuck to the contractual issue. Instead the school chose to use its religious status to show that they are above the law—just as the religious groups have done in Zubik v. Burwell. The question is how far religions will go—not hire women, not pay minimum wage, not fulfilling any obligations that secular groups must—before the country decides that religious groups are not totally above the law.

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