O’Brien v. DHHS–An Important Religious Liberty Case [View all]
September 30, 2012, 4:45 pm
Posted by Cathleen Kaveny
A district court judge dismissed the plaintiffs case on the meritson the grounds that the mandate did not impose a substantial burden on the plaintiffs 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 before Employment Division v. Smith was decided. I dont 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.
OBrien doesnt read RFRA as having a jurisprudence that expands beyond its original purpose of undoing Smith.
http://www.commonwealmagazine.org/blog/?p=21002
The decision:
http://docs.justia.com/cases/federal/district-courts/missouri/moedce/4:2012cv00476/119215/50/0.pdf