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Liberty U's Religious Objection to Employer Mandate Goes Unheard

By William Peacock, Esq. on December 02, 2013 | Last updated on March 21, 2019

This morning, the Supreme Court turned down a second appeal from Liberty University, a private religious college in Lynchburg, Virginia. And while the rejected case is notable because it deals directly with the employer mandate portion of the Patient Protection and Affordable Care Act (ACA), it does beg the question of whether this rejection shines any light on last week's certiorari grants in the similar-yet-distinct contraception mandate cases.

Liberty sought to challenge the portion of the ACA that mandated that employers provide medical coverage, arguing that the law went beyond Congress's powers under the Commerce Clause and that it violated the university's religious tenets. The Fourth Circuit held that the law was simply an extension of Congress' long-standing power to regulate employee compensation (wage, hours, benefits), and that if there was any burden on the university's religious rights under the Free Exercise clause and the Religious Freedom Restoration Act, the burden was minimal and outweighed by the government's competing interests.

Common Factors

Obviously, when you hear religious rights and Obamacare in the same sentence, you can't help but think of last week's twin grants of certiorari. In those cases, which deal with regulations promulgated pursuant to the ACA, employers are challenging the mandates that require them to provide certain forms of contraception to employees, arguing that the rules violate their religious interests. Liberty tried to tack similar contraception complaints onto its employer-mandate lawsuit, but the Fourth Circuit refused to address the claims, as they were brought long after the case had already been decided, appealed, reached the Supreme Court, and remanded back to the circuit's docket.

If the Supreme Court finds that the Free Exercise clause and Religious Freedom Restoration Act apply to the legal fiction of corporate personhood (as Free Speech rights do), private, secular, for-profit corporations would presumably be in the same boat as a religious university, and would have the same rights as Liberty U, rights that conflict with (and must be weighted against) Congress' interest in ensuring that all Americans have affordable and available healthcare options.

Distinguishing Factors

We're talking about two different mandates here. Liberty was (initially) challenging the provision of Obamacare that requires employers to provide health insurance or pay a penalty. The Hobby Lobby and Conestoga Wood cases deal with the regulation-based rule that requires employers to provide contraception coverage.

Also, the parties aren't perfectly similarly situated. Liberty University is a private religious university. Hobby Lobby and Conestoga Wood are private, secular, for-profit corporations with religious owners. Issues of defining "person" for purposes of the RFRA and whether religious beliefs "pass-through" from owners to corporations must be determined first to know how much the parties have in common, in terms of religious rights.

'Substantial Burden' Test?

If the Court finds that corporations can have religious rights, will we see the same logic of the Fourth Circuit's Liberty opinion appear on the main stage? The circuit court balanced the university's religious interests against Congress's right in ensuring affordable healthcare and found that the employer mandate didn't meet the "substantial burden" test, which requires the a showing that the law puts "substantial pressure on an adherent to modify his behavior and to violate his beliefs." A similar balancing could be attempted by SCOTUS, or, could be ordered on remand after the religious rights issue is determined.

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