Law professor says Grote case opinion explores religious liberty questions

By Sean Gallagher

Several business owners across the country have filed suit in federal courts seeking relief from the U.S. Department of Health and Human Services’ (HHS) mandate that requires nearly all employers to provide abortion-inducing drugs, sterilizations and contraceptives to their employees in their company health plan.

A decision was handed down on Nov. 8 in cases brought by members of the Grote family in Madison, Ind., and the Korte family in Highland, Ill. According to University of Notre Dame law professor Richard Garnett, the decision goes further in exploring various legal questions involved in the mandate suits than in previous decisions involving the mandate.

In the 2-1 decision, U.S. Appeals Court Judge Diane Sykes authored the majority opinion. (Related: Madison family business wins challenge to HHS mandate)

Garnett, who teaches constitutional law, is an expert on religious liberty questions and has written widely on the topic. Judge Sykes cited two of Garnett’s legal journal articles on religious liberty in her opinion.

She also used an analogy of the government denying the right of a kosher deli to follow Jewish dietary laws as a way to understand that businesses owners can exercise their religious freedom in how they run their businesses.

Archbishop William E. Lori of Baltimore used this analogy to make the same case when testifying on Feb. 16, 2012 (when he was still the Bishop of Bridgeport, Conn.) before a congressional committee on religious liberty issues related to the HHS mandate.

“Judge Sykes is very engaged and widely read,” said Garnett. “It doesn’t surprise me that she’d be somebody who would be looking at legal scholarship and keeping up with other kinds of discussions about [religious liberty].”

The suit filed by the Grote family, and similar ones brought by private business owners who object to the HHS mandate, focus on the Religious Freedom Restoration Act (RFRA), a federal law enacted in 1993 that codifies the religious freedom enshrined in the First Amendment to the U.S. Constitution.

According to Garnett, RFRA “says that the government shouldn’t burden religious exercise unless it has to. And by ‘has to,’ it means for a good reason and there’s no alternative.” He also noted that the statute requires that when the government can establish valid reasons for burdening religious liberty, it must use the most minimal means possible.

The cases regarding private business owners objecting to the HHS mandate, Garnett said, deal with two questions related to RFRA. Are government regulations related to business corporations affected by RFRA? And is there a “compelling interest” that would justify the government burdening the religious liberty of the business and its owners?

Garnett noted that Judge Sykes made various arguments that business owners like the Grotes can seek religious freedom protection from RFRA. One of the points she raised, Garnett said, is that RFRA does not explicitly exclude business regulations.

In the second question—whether or not there is a compelling interest in the HHS mandate that would allow the government to substantially burden a business owner’s religious liberty—Judge Sykes makes a more detailed argument than judges in similar cases, Garnett said.

“The other courts haven’t gone as much into detail about those questions, I think it’s fair to say,” Garnett said. “Judge Sykes says there is a burden here. What’s the compelling interest that justifies this burden? The government says that the compelling interest is gender equality in health care.

“And her point is that that’s too broad, that’s too general. You have to focus a little bit more on what the compelling interest is in applying the mandate to these claimants.”

Even if the government can establish a compelling interest, Judge Sykes, according to Garnett, says that the means it uses in the HHS mandate to meet that interest are too wide to make it comply with RFRA.

“She says that [we should] think of all the other ways that are available to the government to pursue these interests,” Garnett said. “The government could have just paid for the coverage itself. It could provide a voucher. It could provide a tax credit. All of these kinds of things.”

Garnett, who served as a clerk for the late Chief Justice of the United States William H. Rehnquist, said that the nine justices of the U.S. Supreme Court will know about the Grote case as they consider whether or not to hear arguments in a mandate case in the coming months.

If they do choose to rule on the matter, the Grote case might or might not be included.

“One option is to combine all of the cases,” Garnett said. “Another option they sometimes take is that they hold the other cases pending their decision in one case.” †

Related: More religious freedom news