O'Brien v. DHHS--An Important Religious Liberty Case
Cathleen Kaveny September 30, 2012 - 4:45pm
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.