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Hobby Lobby was about a lot of things: religious rights of corporations, substantial burdens, compelling interests in contraception, readily available alternative means to provide contraception, and dictionaries. The end result was this: closely held corporations with religious owners can't be forced to pay for health coverage that provides contraception, especially since there is an existing exemption program for religious nonprofits that these employers could easily be wedged into.
But what if that exemption program itself, which requires the organization to fill out a form and find a third-party administrator to provide contraceptive coverage on the government's dime, is a burden on religion? The Little Sisters of the Poor were the first to make this argument, and the Supreme Court stepped in to grant an injunction. The Eleventh Circuit did the same for EWTN, a Catholic television network, mere hours after Hobby Lobby, with a surprising special concurrence by Judge Bill Pryor.
With a disclaimer that the court "express[es] no views on the ultimate merits of EWTN's appeal in this case," a panel of the Eleventh Circuit granted an injunction in favor of Eternal Word Television Network (EWTN), a religious nonprofit that argues that participation in the contraception mandate exemption program is itself a violation of Catholic teachings, as filling out the paperwork and finding a third-party administrator to provide contraceptive coverage enables conduct that is a grave sin.
It's the "I didn't shoot her -- I gave George the gun and told him to shoot her" argument -- either way, you're guilty.
Despite the panel's assertion that they expressed no view on the merits, Judge Bill Pryor went ahead and launched into a nearly thirty page diatribe, expressing his view on the merits. In short, the conservative judge agrees with EWTN.
We all hate paperwork, but EWTN's frustrations go far beyond paper cuts and wasted time. The network argues that any action that enables someone else to provide contraception is itself a grave sin. It cites an example of German abortion counseling -- in order to obtain an abortion, a woman was first required to receive counseling. The Church put a stop to Catholic officials providing such counseling, as they were providing the prerequisite to obtaining an abortion.
Calling other circuits' decisions, which have held against objecting religious nonprofits, "rubbish," Judge Pryor made it clear where he stands on the issue:
Form 700 is "more than an inconvenience on religious exercise" because it "requires participation in an activity prohibited by religion." To be sure, federal law requires contraceptive coverage whether or not the Network signs the form. But the problem in this appeal is that federal law compels the Network to act. That participation, the Network has declared, without dispute, makes it complicit in a grave moral wrong according to the teachings of the Catholic Church. (citations omitted).
Judge Pryor also invoked the language of Burwell v. Hobby Lobby, stating, "it is not for us to say that [the Network's] religious beliefs are mistaken or insubstantial." We must instead "determine whether the line drawn [by the Network] reflects an honest conviction, and there is no dispute that it does." (citations omitted).
Does Judge Pryor have it right? Share your thoughts on Twitter @FindLawLP.
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