A Significant Opinion

Earlier this year, I accepted an invitation to respond in a public forum to Kyle Duncan, a Becket Fund lawyer involved in the religious liberty cases currently addressing the provisions of the ACA. That experience turned me into something of a keen amateur legal eagle on this particular issue and, earlier this week, my attention was brought to a recent opinion involving the case of the Roman Catholic Archdiocese of New York versus Kathleen Sebelius .

The received wisdom holds that the cases involving religious not-for-profits are much more straightforward than for-profit cases, such as that involving Hobby Lobby. It is arguable that the opposite is in fact the case: The federal government’s accommodation for religious not-for-profits is (morality aside) a strategically brilliant move which, given that health care premiums are all fungible anyway, has conceded just enough to make the argument about burden of conscience a complex one to make. Nevertheless, the opinion in this case is encouraging. A key statement occurs on p. 29:

“The non-Diocesan plaintiffs have demonstrated that the Mandate, despite the accommodation, compels them to perform acts that are contrary to their religion. And there can be no doubt that the coercive pressure here is substantial.”