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July 9, 2015 (CardinalNewmanSociety) — All the evidence suggests that Catholic schools and colleges are going to win their challenges to the Obama administration’s “HHS mandate,” attorney Mark Rienzi of the Becket Fund for Religious Liberty told The Cardinal Newman Society.

In a summary of lawsuits compiled by the Newman Society with information from the Becket Fund, at least 22 Catholic schools and 11 Catholic colleges have challenged the mandate in federal courts. Two of the schools— Pius X Catholic High School in Lincoln, Neb., and Rhodora J. Donahue Academy in Ave Maria, Fla.—are on the Newman Society’s Catholic Education Honor Roll of faithful Catholic high schools.

Eight of the colleges are recommended in the Newman Guide, including Aquinas College in Nashville, Tenn.; Ave Maria University in Ave Maria, Fla.; Belmont Abbey College in Belmont, N.C.; The Catholic University of America in Washington, D.C.; Franciscan University of Steubenville, Ohio; Thomas Aquinas College in Santa Paula, Cal.; University of Dallas, Tex.; and Wyoming Catholic College in Lander, Wyo.

Winning permanent injunctions against enforcement of the HHS mandate is critical to the protection of Catholic schools and colleges and their ability to faithfully live out their Catholic identity and mission, attested Rienzi, who is also an assistant professor at The Catholic University of America’s Columbus School of Law. Under the current form of the HHS mandate, most Catholic institutions would be forced to facilitate employee access to full insurance coverage for sterilization and contraceptives, including some that cause abortion. If schools and colleges are not granted relief from the HHS mandate, they will be subjected to severe fines for not participating.

Good Results at Supreme Court

The Catholic institutions contesting the mandate in court have argued that it poses a significant religious burden by making them complicit with immoral actions and forcefully violating sincerely held religious beliefs.

Thus far, the response from the federal courts has varied widely. Some lower courts have denied injunctions against enforcement of the HHS mandate, but many others granted injunctions. Some of the cases filed early, when the Obama administration was fiddling with multiple changes to the mandate, were dismissed because courts found that the cases were not yet “ripe” for a ruling.

A few of the Catholic schools and colleges were granted temporary relief from the mandate by the U.S. Supreme Court—which Rienzi says is good reason to be optimistic about a favorable resolution when the Court finally takes up the mandate’s impact on religious nonprofit organizations, probably in the Court’s next session.

In April, the Supreme Court vacated a ruling by the Sixth Circuit Court of Appeals, which had denied injunctions to Aquinas College and other Catholic institutions joined in a lawsuit with the Michigan Catholic Conference. The Supreme Court sent the case back to the appeals court with instructions to review its ruling in light of the Hobby Lobby decision, which exempted many small for-profit companies from the HHS mandate. This repeated a similar action in March, when the Court sent the University of Notre Dame’s lawsuit back to the Seventh Circuit Court of Appeals to consider the implications of Hobby Lobby.

Also in April, the Supreme Court granted a stay preventing enforcement of the HHS mandate against Erie Catholic Preparatory School, together with the Dioceses of Erie and Pittsburgh, after the Third Circuit Court of Appeals refused an injunction.

In fact, every opponent of the HHS mandate that has eventually made its way to the Supreme Court has been granted relief. That means religious freedom is “six for six,” says Rienzi, offering hope for other schools and colleges that were denied injunctions in the lower courts.

One such case that earned relief at the Supreme Court is known as the Little Sisters of the Poor case, but more accurately it focuses on the Christian Brothers Health Benefits Trust, which provides insurance benefits for dozens of Catholic organizations and has refused to comply with the HHS mandate. Among the institutions protected by the Trust are The Cardinal Newman Society and Belmont Abbey College, which filed the very first challenge to the HHS mandate but dropped its suit after switching its benefits plan to Christian Brothers.

This all points to an eventual win for religious freedom protections, stated Rienzi. “It is very likely that the Supreme Court will rule in favor of religious freedom,” he said. “I think the government’s argument is incredibly weak.”

Positive Impact of King v. Burwell

The argument is weak, Rienzi explained, because there is no reason to force religious organizations to provide contraceptives or violate their moral beliefs by facilitating access to them—especially now that the Supreme Court has ruled in King v. Burwell that citizens will have access to the health insurance exchanges provided under the Patient Protection and Affordable Care Act (“Obamacare”).

“The best indicator is the decision in King v. Burwell which makes clear that the exchanges are here to stay and the government can subsidize whoever it wants on the exchanges,” he said. “After that case, the government’s argument is even more ridiculous than it used to be.”

The exchanges ensure that employees can get the immoral health coverage if an employer refuses to provide it for religious reasons, Rienzi explained.

“It was already ridiculous to say that you cannot give out contraceptives without the Little Sisters of the Poor. Just on the surface, that’s ridiculous, especially in a world where the government runs its own exchanges and where people can buy policies there that have everything the government wants them to have,” he said.

“There’s just no plausible reason why the government can say, ‘I need to make the nuns do it too’ or ‘I need to make a Catholic college do it too,’ because anyone who wants [contraceptives] can go buy it right now on the exchanges,” Rienzi argued. “It’s just as easy to go to as it is to go to the benefits webpage of your college.”

According to Rienzi, many lower court judges got this wrong and denied injunctions to religious objectors, but it is a line of reasoning that the Supreme Court now appears to have rejected by granting relief to Catholic schools, colleges, charities and dioceses. “I don’t think [the Supreme Court] would keep giving that relief if they agreed with the government that there was no burden to sign the forms and participate,” Rienzi noted.

Catholic educators and other religious objectors continue to argue that signing the forms to enable contraceptive coverage, which the government views as an “accommodation” that avoids directly providing the coverage, still poses a significant religious burden and would make any participant complicit in providing contraceptives. But the government has claimed that it is the judges or courts, rather than the religious objector, who should determine what constitutes a significant religious burden.

“I think the government’s argument gets sillier by the day,” Rienzi continued. “In fact, the government has made the exact same argument to the Supreme Court that it is making in these lower courts. They’ve gotten lucky in some lower courts, but the bottom line is they’ve made those arguments six times to the Supreme Court and they’re zero for six.”

The Next Challenge: Tax Exemption

Even while court cases proceed against the HHS mandate, there is a new federal threat to religious freedom resulting from the Supreme Court’s ruling granting marriage benefits to same-sex couples. Riezni said that he doubts the marriage decision made in Obergefell v. Hodges will do much to erode religious freedom protections with regard to teaching the Catholic faith. “The majority opinion and the dissents all seem clear that religious people and organizations have to have the freedom to teach their doctrine—and that’s really all nine justices agreeing on that point.”

It would be “very weird” for five of the justices to then retract and say that the government is going to tell you what your doctrine is and when it is violated, he said.

But one potential threat to Catholic schools and colleges is the possibility of losing their tax-exempt status—a topic that was broached during the oral arguments for Obergefell v. Hodges.

“Justice Alito asked that question of the top lawyer for the United States government at the oral argument, and the top lawyer said that [tax exempt status] certainly is going to be an issue,” Rienzi said.

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“I think Justice Kennedy’s opinion for the majority saying that you have a first amendment right to teach your doctrine would also mean that the government can’t strip you of tax exempt status for teaching your doctrine,” said Rienzi, but it is a realistic thing to worry about.

The concern includes state and local tax exemption, too. Catholic colleges, dioceses and churches that own significant amounts of property and currently enjoy tax-exempt status as nonprofits could suffer significantly if they suddenly had to pay property tax on thousands and millions of dollars’ worth of land and property.

“There’s no doubt that there are some in the country who would like to see that happen, so it’s something that religious organizations need to be alert to.”

Big Decision on the Horizon

Rienzi indicated that the Supreme Court will most likely pick up the HHS mandate and tax exempt issues during its next session, but the precise damage it could cause if Catholic schools and colleges were to lose their cases is still unknown.

“How much it would hurt will depend on how [the Supreme Court] gets it wrong.” Clearly, a negative decision would dramatically impact Catholic educators’ ability to live out and teach their doctrine according to their faith, he said. “I think it would be a real bad turn for the Court to suddenly say, ‘no, it’s the judges and governments that will tell you what’s okay by your faith and what’s not.’”

“It is very hard for me to see the Supreme Court taking that position,” Rienzi concluded. “They’re six for six in getting that right, and the government is zero for six when it tries to convince them of the other side.”

To stay up to date on the latest developments regarding cases against the HHS mandate, follow the Becket Fund’s HHS Mandate Information Central.

Reprinted with permission from The Cardinal Newman Society.