Tenth Circuit Court of Appeals

Federal Court Rejects Another Bogus 'Religious Liberty' Claim From Religious Right

The Tenth Circuit today released its opinion in Little Sisters of the Poor v. Burwell, becoming the latest federal appellate court to reject the claim that the Obama Administration’s contraception coverage accommodation for religious nonprofits violates their religious liberty.

This is the latest effort by the far right to redefine “religious liberty” and the Religious Freedom Restoration Act (RFRA) to use as a sword to deprive third parties of their legal rights.  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The Tenth Circuit now joins the DC Circuit, the Third Circuit, the Fifth Circuit, and the Seventh Circuit in rejecting this attack on the accommodation for religious nonprofits.  Notably, all these decisions came after the Supreme Court rewrote the Religious Freedom Restoration Act (RFRA) in the Hobby Lobby case, giving certain for-profit corporations and their owners greater latitude to exempt themselves from laws they find personally offensive.  (The Sixth Circuit also reached the same conclusion, but it is still in the process of reconsidering it to make sure it is consistent with Hobby Lobby.)

The Obama Administration created a process whereby religious nonprofits can exempt themselves from the federal requirement that its employees have certain contraception healthcare coverage: Fill out a form (or now, just send a letter) and let the Department of Health and Human Services know that you won’t be providing it and say who your insurance carrier is, so that officials can inform them of their legal requirements to provide the coverage.  The religious right has called even this accommodation a violation of the religious liberty rights of nonprofits, saying it makes them complicit in the provision of contraception that violates their religious beliefs.

The Tenth Circuit concluded that the accommodation does not substantially burden Plaintiffs’ religious exercise and therefore does not violate RFRA.  The court stated:

The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage.  Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage.  Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.

The court does not question the sincerity of the plaintiffs’ assertion that filling out the form violates their religious beliefs.  But it also pointed out that under RFRA, whether a burden is substantial is a legal question that is up to the court, not the plaintiff, to answer:

If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning.  Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.  (internal citation removed)

Whether it’s women’s ability to access their legal right to healthcare or same-sex couples’ ability to exercise their constitutional right to marry, imagine the chaos if people could simply exempt themselves from – and severely weaken – laws they disapprove of by citing their personal religious beliefs.

But that is a recipe for a Balkanized society, not a healthy pluralistic democracy.  Citing a previous case, the Tenth Circuit states: “Law accommodates religion; it cannot wholly exempt religion from the reach of the law.”

This post originally appeared on the blog of People For the American Way.

Tenth Circuit Protects Right to Marry

A federal appeals court rules that same-sex couples have a constitutional right to marry.
PFAW Foundation

McConnell Bobs and Weaves on Judicial Nominations

McConnell tries & fails to justify filibuster of DC Circuit nominee Srinivasan, and throws a GOP-supported 10th Circuit nominee under the bus in the process.
PFAW

Circuit Court Rejects Attack on Contraception Coverage

The 10th Circuit rejects the argument that an employer's religious liberty is substantially burdened by the contraception coverage requirement.
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On Obstructing Judges, Senate Republicans Get Even Worse

Republicans are seeking the first ever successful filibuster of a circuit court nominee who was approved in committee with bipartisan support.
PFAW

Filibuster of 10th Circuit Nominee Would Be Unprecedented

On Monday, the Senate will hold a cloture vote to end the filibuster of Robert Bacharach to the Tenth Circuit Court of Appeals. This filibuster is just the latest example of the destructive obstruction of judicial nominees that Republicans have engaged in from the very start of the Obama presidency.

In fact, if this filibuster succeeds, it will be the first time there has ever been a successful filibuster of a circuit court nominee who was approved in committee with bipartisan support.

Bacharach, who hails from Oklahoma, is extraordinarily well qualified to be a circuit court judge. The ABA panel that evaluates judicial nominees unanimously gave him their highest possible rating, "well qualified." He has been a magistrate judge in the Western District of Oklahoma for over a decade, giving him substantial experience with the criminal and civil legal issues he would face as a circuit court judge.

Much of Oklahoma's legal establishment has publicly supported his nomination: the Chief Judge for the Western District of Oklahoma; the Oklahoma Bar Association; the Dean of the University of Oklahoma College of Law; the General Counsel at Oklahoma City University; the Dean Emeritus at Oklahoma City University School of Law; the President of the Oklahoma County Bar Association; fellow members of the Federal Bar Association; and attorneys who worked closely with him while he was in private practice.

Bacharach also has strong bipartisan support. He has the support of President Obama and both of Oklahoma's Republican senators. In addition, he was approved by the Judiciary Committee nearly unanimously, with only Sen. Lee voting no (for reasons unrelated to the nominee). Sen. Coburn has said it would be "stupid" for his party to block a floor vote on Bacharach.

Last month, Senate Minority Leader Mitch McConnell announced that his party would refuse to consent to any further confirmation votes for circuit court nominees, purportedly because it is an election year. He cited the so-called "Thurmond Rule," which he mischaracterized as a practice of not allowing any judicial confirmation votes as we approach a presidential election. In reality, it is not a "rule" at all. Instead, it is the name for the general principle that the party not in the White House will sometimes slow confirmation of controversial judicial nominees at some point in the months leading up to a presidential election. It has nothing to do with consensus nominees like Bacharach.

In fact, as noted above, a successful filibuster of Bacharach would be the first time there has ever been a successful filibuster of a circuit court nominee who was approved in committee with bipartisan support. That is hardly consistent with Senate history or practice.

But it would be consistent with Republican efforts to obstruct President Obama's judicial nominees regardless of their qualifications, regardless of their strong bipartisan support, and regardless of the damage the obstruction inflicts on the American people. After years of calling filibusters of President Bush's judicial nominees unconstitutional, Senate Republicans turned around and filibustered President Obama's very first judicial nominee (David Hamilton, to the Seventh Circuit). This year, most of the circuit court nominees who have been confirmed have required a cloture vote to break Republican filibusters.

Republican efforts to filibuster Robert Bacharach are completely unjustified, but are also no surprise.

 

PFAW
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