Ed Whalen at National Review: As I have discussed in my previous posts, Judge Sykes’s majority opinion in Korte v. Sebelius straightforwardly applies Supreme Court precedent to hold that the federal Religious Freedom Restoration Act entitles plaintiffs to preliminary injunctive relief against the HHS mandate. In her dissent, by contrast, Judge Rovner repeatedly departs from and defies Supreme Court precedent.
Ed Whelan at NRO: The last big question under RFRA is whether a substantial burden on a person’s exercise of religion can survive strict scrutiny. More precisely, RFRA provides . . .
Ed Whelan at NRO: Now let’s turn to the next question under RFRA: whether the HHS mandate substantially burdens plaintiffs’ refusal, on religious grounds, to provide health insurance that covers contraceptives (including drugs that sometimes operate as abortifacients) and sterilization.
Ed Whalen at National Review: Let’s start with the questions whether each plaintiff corporation (1) is a person under RFRA, and (2) is engaged in an exercise of religion when it refuses to provide health insurance that covers contraceptives.
A couple of observations about the Seventh Circuit’s discussion of RFRA’s reach in the contraceptives mandate challenges | Kevin Walsh at Mirror of Justice
Kevin Walsh at Mirror of Justice: I have finally finished reading through the 154 pages of the Seventh Circuit opinions in Korte v. Sebelius (mentioned by Rick a bit earlier today). To Rick’s assessment of Judge Sykes’s “excellent opinion” as “one of the most detailed and deep” analyses of the interaction between RFRA and the contraceptives mandate, I would add that Judge Rovner’s dissent is one of the most thorough expositions of the government’s side of the case (although Judge Rovner’s mode of analysis does not map directly onto the government’s). Reading the majority and dissenting opinions together provides a good overview of the state of the arguments on both sides.
Ed Whelan at National Review: There are two good reasons why the DOJ attorney’s argument that vindicating the RFRA rights of the business owners would violate the Establishment Clause was an “unexpected twist.” First, DOJ never made that argument in either of its Seventh Circuit briefs in the two cases. Second, there is good reason that it didn’t, for the argument is inane.
Religion Clause Blog: The second case argued yesterday was Grote v. Sebelius. (Audio of the full oral argument.) In the case an Indiana federal district court refused to grant a preliminary injunction to a for-profit business that manufactures vehicle safety systems and its Catholic owners who claim that their religious liberty rights are infringed by the mandate.
Washington Post: By the government’s own estimate, that means 100 million Americans might not have contraceptive coverage, said Matt Bowman, an Alliance Defending Freedom lawyer representing the Grotes in one of the two cases heard Wednesday. That could undercut the government’s argument that the need to carry out the mandate is so compelling it trumps the couple’s religious beliefs.
Chicago Tribune: Grote Industries, a Catholic-owned manufacturer of vehicle safety and lighting systems in Madison, Ind., made similar arguments before the Seventh Circuit on Wednesday, adding that the distinction between a company and its owner or controlling shareholders exists for “some purposes, but not moral purposes.” “No doubt here the Grote family is being forced to choose,” lawyer Matthew Bowman argued. If they choose to disobey the mandate, they “forfeit the benefits of doing business at all according to their morality.” | Hat tip: How Appealing
Ken Klukowski at Breitbart: On Dec. 28, 2012, the U.S. Court of Appeals for the Seventh Circuit ruled that the HHS Mandate violates this family’s religious liberty as guaranteed by the Religious Freedom Restoration Act (RFRA). Kathleen Sebelius’ mandate could be argued to violate the First Amendment as well, but if a court can resolve a case by looking to a statute, it will avoid issuing an opinion regarding constitutional issues. The Seventh Circuit has issued an injunction while the appeal in this case, Korte v. Sebelius, is pending.