It has been two and a half years since the federal government, on August 1, 2011, announced that the preventative health services for women that all health plans must cover must include all FDA-approved contraceptive services, including emergency contraceptives and contraceptive devices that act as abortifacients. Since then, despite a (very narrow) religious employer exemption and a (very inadequate) "accommodation" for non-exempt religious nonprofit organizations, opposition on religious freedom grounds has been continuous-protest letters, critical comments on regulations, delegations to the White House, congressional conscience bills, street protests, pulpit condemnations . . . and a growing flood of lawsuits and a mounting toll of knockdowns of the contraceptives mandate by lower and appeals courts.

Among the latest developments are these (check the Becket Fund's HHS Mandate Information Central for the lawsuits):  

* The total number of lawsuits has mushroomed to 87, nearly equally split between for-profit and non-profit plaintiffs.

* The US Supreme Court has decided to take up two of the religious-owned business cases, Hobby Lobby and Conestoga Wood. (See Richard Garnett's Los Angeles Times op-ed and Mary Ann Glendon's Boston Globe commentary.)

* Businesses, which are protected by neither the exemption nor the accommodation, have a great record in obtaining preliminary injunctions against the mandate: 33 victories to 6 losses.

* The "accommodation" is insufficient. The accommodation is now in the regulation book, so courts are taking up the non-profit cases, and the religious nonprofits are winning--despite the accommodation. The score is currently 4 injunctions granted to 0 injunctions denied.

Here's what the judge in one of the Catholic nonprofit cases said (Zubik v. Sebelius):

"[A]lthough the 'accommodation' legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products, services, and counseling, the 'accommodation' requires them to shift the responsibility of purchasing insurance and providing contraceptive products, services, and counseling, onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that 'shifting responsibility' does not absolve or exonerate them from the moral turpitude created by the 'accommodation'; to the contrary, it still substantially burdens their sincerely-held religious beliefs.

. . . .

"Why should religious employers who provide the charitable and educational services of the Catholic Church be required to facilitate/initiate the provision of contraceptive products, services, and counseling, through their health insurers or TPAs, when religious employers who operate the houses of worship do not?"

H.T. to the Evangelical Council for Financial Accountability.  

* With the "accommodation" finalized, new nonprofit cases are being filed and cases that had been dismissed are being re-filed.

The University of Notre Dame re-filed on December 3. In the press release Rev. John Jenkins, Notre Dame president, said:

"As I said regarding our original filing, because at its core this filing is about the freedom of a religious organization to live its mission, its significance goes well beyond any debate about contraceptive services. For if we concede that the government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately will undermine those institutions. For if one presidential administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name."

A key question in the business cases is whether and how a business might exercise religion and be accorded religious freedom. The federal government claims in these cases that religious freedom goes out the window as soon as profits come in the door of an organization. Businesses supposedly don't have constitutional rights--but tell that to the New York Times, which won a Supreme Court case because it does have a free speech right. Corporations supposedly can't have religious rights--but nonprofits are corporations and surely religious nonprofits, including churches, have religious rights!

That line of argument just won't wash. But how can a business entity have rights? Some say it is the owners who must be accorded religious freedom; the company is an extension of them, so they must be allowed to set religious guidelines for how the company functions. But what about a public company with thousands of shareholders? Surely the company isn't simultaneously the extension of each of those shareholder's convictions.

Isn't it simpler and more accurate to just say this: an organization (for-profit or not-for-profit) is a structure designed to accomplish certain things in certain ways. The founders designed it do those certain things in those certain ways. And the board is required to keep it on mission. Employees come to work here and not elsewhere because of those things it does in the ways it does them. And customers or patients or clients or students flock to this organization instead of another one because of what it is and how it serves.

In the case of a religious organization, what it does and how it does it was designed by the founders to reflect certain religious convictions. And the board is charged with ensuring that the organization remains consistent with the policies grounded in those convictions. It is a faith-shaped or faith-based organization. If the government prevents the organization from operating or serving in that faith-shaped way, it is in effect preventing the founders from expressing their religious convictions through the operations and services of the organization. Although hey are free to worship according to those convictions and perhaps to follow their convictions when they serve fellow believers, they are blocked when they wish to serve the public in general and on a large scale. Such a government act prevents the founders from being able to exercise their faith when they determine what employee benefits the organization will offer, or when they decide what kinds of services to offer or not to offer.

Even though we have just enjoyed Thanksgiving, Christmas is just around the corner, and the idea that Congress might actually reform taxes or make other significant fiscal progress seems entirely speculative, the federal tax deduction for charitable giving is not in a safe harbor. Rhett Butler, coordinator of the Faith & Giving Coalition, notes several recent press reports hinting that Republicans in the House continue to contemplate restrictions on this "tax break" or "tax expenditure" as one way to deal with the federal government's fiscal black hole. Restrictions on the deduction have also been advocated by the President, outside commissions seeking some grand bargain to produce a decline in the huge federal deficit, and some Senate Democrats and Republicans. There are positive signs, too, but no reason to be complacent.

IRFA's sphere of service is faith-based service organizations, not churches and clergy, but only because of a division of labor. Faith-based services (schools, adoption agencies, etc.) are just a different expression of the religions that are also expressed in various houses of worship.

When secular-minded judges and activists take aim at the religious freedom of churches and clergy, you can be sure they will be even more opposed to the religious freedom of faith-based services-which they often argue are not really religious and thus ought to be treated the same as secular services. So the recent ruling by Judge Barbara Crabb in a Wisconsin case that the clergy housing exemption is unconstitutional because it privileges religion is one of those small clouds in the sky that proponents of faith-based services should notice. Would a judge with this mindset regard a religious exemption that enables a faith-based service to be faithful to its religious convictions also to be an unconstitutional "privilege"?

But there is no reason to overreact: Judge Crabb in 2010 ruled that the National Day of Prayer is unconstitutional, but the 7th Circuit appeals court unanimously threw out her decision. Moreover, precedent is against her in the current case, as a commentary from the Baptist Joint Committee for Religious Liberty, notes:  

"In a statement following Judge Crabb's ruling, [BJC executive director Brent] Walker recalls that religion-specific exemptions have been upheld by the Supreme Court in the past as expressions of government neutrality that are within the government's discretion under the First Amendment. 'Although the Free Exercise Clause of the First Amendment does not require this accommodation, the First Amendment's Establishment Clause does not forbid it either.'"

See also the coverage at ECFA.