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O'Brien v. DHHS--An Important Religious Liberty Case

A district court judge dismissed the plaintiff's case on the merits--on the grounds that the mandate did not impose a substantial burden on the plaintiff's religious liberty.Plaintiffs allege that the preventive services coverage regulations impose a similar ultimatum, and therefore substantially burden their free exercise of religion by coercing Plaintiffs to choose between conducting their business in accordance with their religious beliefs or paying substantial penalties to the government. Am. Compl. 40 [Doc. #19]. However, the challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank OBrien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIHs plan, subsidize someone elses participation in an activity that is condemned by plaintiffs religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiffs religious exercise.It seems to me the key issue is whether the Religious Freedom Restoration Act has a jurisprudence that expands the rights protected beyond what was in place the day beforeEmployment Division v. Smith was decided. I don't think that this is a sound reading of the statute; I get the sense that some religious liberty scholars think otherwise. I think that, for example, is what my difference with Michael Moreland boiled down to be.O'Brien doesn't read RFRA as having a jurisprudence that expands beyond its original purpose of undoing Smith.By the way, I continue to think the key Supreme Court case is U.S. v. Lee; my view on this matter is strengthened by Chief Justice Roberts framing the mandate as a tax in upholding the constitutionality of health care reform.

About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.



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So Mr. O'Brien is a very devout Catholic who happens to own a business that has nothing --- nada, zilch, absolutely nothing --- to do with religion.Whoopi-ding.(that's my 2 cents worth as a non-lawyer who pays his taxes, some of them being used for purposes I don't necessarily or always approve of, but nonetheless "go along" for the sake of the greater common good in a multicultural, pluralistic society)

the trouble is that most of us Catholics see nothing wrong with paying for contraceptives and this lends an air of unreality to the entire debate.suppose, however, that the money could end up being spent on desecration of the Eucharist, for example, would the judgment be regarded as valid?

"suppose, however, that the money could end up being spent on desecration of the Eucharist, for example, would the judgment be regarded as valid?"It could. Employers are required to pay their employees wages/salaries, and the employees could use that money for all kinds of things to which their employers object on religious grounds.

It bears mention, Cathy, that the federal judge who decided this case--Carole E. Anderson--was nominated for the judgeship in April 1992 by President George H.W. Bush:

Joseph, there is nothing that stops people from using their income to desecrate the Eucharist. There is, however, sufficient protection for religion embedded within the fabric of the constitution that it would almost certainly be illegal for Congress to appropriate money to subsidize desecration of the Eucharist. The concepts of neutrality, entanglement, discrimination against particular religions -- would make any scheme that had as its purpose the desecration of religion in general or the Eucharist in particular highly problematic. This is distinguished from situations such as this one, in which "desecration" is in the eye of the beholder -- that is, no one seriously believes that covering contraceptive health services has as its purpose or goal undermining religion.

All the more reason to vote for Romney, so that the evil HHS mandate will be rescinded.

nice to see that Obama is surging among white catholics who did not enthuse about him in 2008. the reason is the incredible ineptitude of Romney-Ryan (yet McCain-Palin were little better) and perhaps also the boomerang effect of the amazing behavior of the bishops.

"...the boomerang effect of the amazing behavior of the bishops."Joseph O'Leary, I think you (and others elsewhere) have nailed it on the head!Abolish the legal restrictions on religious leaders, let them pronounce, and see what happens: Parish and episcopal revenues drop --- or stop! (I doubt they'd increase.)Maybe these "JPII hierarchs" are God's long-term way of renewing the church --- from the outside in!!! These guys seem to be their own worst enemy :-)

Rob Vischer has some thoughts, at Mirror of Justice, which will be helpful to those seeking to understand the trial court's decision in O'Brien: Religious Freedom Restoration Act identifies as its purpose "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened." The trial court in O'Brien rejected, categorically, the plaintiff's claim that "religious exercise" (RFRA's term) was "substantially burdened," and so didn't get to the question of justification. In Lee, by contrast, the Court accepted the plaintiff's claim of a burden, but noted (correctly) that not all burdens on the free exercise of religion are unconstitutional and concluded (correctly, I think) that an accommodation was not feasible and so not required. Lee provides little support, if any, for the O'Brien court's handling of the RFRA claim.

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