5th Circuit Shoots Down Form-Signing Objections

Conservative Judge Jerry Smith wrote the unanimous decision

The conservative Fifth Circuit Court of Appeals has ruled against a collection of cases in which the plaintiffs argued that filling out a form declaring their religious objections to contraception coverage somehow violated their religious freedom. From the characterization there you can get a pretty good idea what I think of that argument - it's fundamentally ridiculous. But if upheld, it could have led to serious legal problems.

Some background: in order to address objections to contraceptive coverage by religious employers, an accommodation was written into the new health care law that required such employers to submit a form declaring their religious objections. Once the government received the form, it would direct a third party to provide coverage. The Hobby Lobby decision expanded the eligibility for this accommodation to closely-held for-profit corporations whose owners share the same religious beliefs.

For the folks pushing these cases, though, that wasn't good enough. They argued that since the eventual result of filling out the form or informing the federal government of their objections was that coverage would be provided, their religious freedom was still being impinged upon. So apparently under their argument the only way that the government could figure out that an employer should get an accommodation in the first place would be to use telepathy or something.

East Texas Baptist University v. Burwell is a consolidated batch of cases, handed down on Monday, involving religious employers who object to some or all forms of birth control. These employers are entitled to an accommodation exempting them from federal rules requiring them to offer birth control coverage to their employees. Most of them may invoke this accommodation simply by filling out a form or otherwise informing the federal government of their objection and naming the company that administers their employer health plan. At this point, the government works separately with that company to ensure that the religious employer’s workers receive contraception coverage through a separate health plan.

Several lawsuits are working their way through the federal courts which raise the same legal argument at issue here. In essence, the employers claim that filling out the form that exempts them from having to provide birth control makes them complicit in their employee’s eventual decision to use contraception, and so the government cannot require them to fill out this form. So far, every single federal appeals court to consider this question has sided with the Obama administration and against religious employers who object to this accommodation.


Few judges on any court, however, are as conservative as Judge Jerry Smith, a Reagan appointee to the United States Court of Appeals for the Fifth Circuit whose law clerks frequently go on to clerk for the most conservative members of the Supreme Court. Nevertheless, Smith makes short work of the claim that the fill-out-a-form accommodation burdens religious liberty. The federal Religious Freedom Restoration Act (RFRA) provides that the federal government “shall not substantially burden a person’s exercise of religion” except in limited circumstances. Applying this language, Smith writes in a unanimous opinion for a three-judge panel that “[t]he plaintiffs must show that the challenged regulations substantially burden their religious exercise, but they have not done so.”

I agree that the argument these cases are putting forth makes no sense. In order to qualify for the accommodation, employers have to submit a form asserting their objection or inform the government of it in some fashion. That's it. Apparently, then, argument goes something to the effect that said organizations are having their religious freedom rights impinged upon by signing a form that asserts their religious freedom rights.

The religious argument over contraception is confusing to me anyway, though. The Catholic objection seems to be rooted in God's command to the Israelites to "be fruitful and multiply," but that has always struck me as a weak argument given the context of the original quote. And for Evangelicals, much of it is based on the assertion that hormonal birth control of whatever sort aborts fertilized eggs - which actual scientific research has repeatedly shown is simply not true.

To my way of thinking it doesn't make that much difference whether an employer or a third party is providing contraception coverage so long as it remains available to employees. On those grounds, I thought the Hobby Lobby decision was actually pretty reasonable - that a company owned by members of a particular religious group could be eligible for the same accommodation as a religious non-profit, since the system was already set up and defined.

This batch of cases could mess all that up if for some reason the accommodation itself were to be found unconstitutional, but this ruling from the appeals court suggests that's not likely to happen. The actual Hobby Lobby ruling penned by conservative justice Samuel Alito specifically referenced the accommodation as the least restrictive means to implement an exemption for closely-held religious corporations, so that suggests the Supreme Court will rule the same way if the case gets that far