E. Tex. Baptist Univ. v. Burwell

807 F.3d 630 (Mem)

EAST TEXAS BAPTIST UNIVERSITY; Houston Baptist University, Plaintiffs–Appellees,

Westminster Theological Seminary, Intervenor Plaintiff–Appellee,

v.Sylvia Mathews BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services;

Thomas Perez, in his official capacity as Secretary of the United States Department of Labor;

Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury;

United States Department of Health and Human Services; United States Department of Labor; United States Department of Treasury, Defendants–Appellants.

University of Dallas, Plaintiff–Appellee,

v.Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services;

Thomas Perez, in his official capacity as Secretary of the United States Department of Labor;

Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury;

United States Department of Health and Human Services; United States Department of Labor; United States Department of Treasury, Defendants–Appellants.

Catholic Diocese of Beaumont ; Catholic Charities of Southeast Texas, Incorporated, Plaintiffs–Appellees,

v.Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services;

Thomas Perez,in his official capacity as Secretary of the United States Department of Labor;

Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury

United States Department of Health and Human Services; United States Department of Labor; United States Department of Treasury, Defendants–Appellants.

Catholic Charities,Diocese of Fort Worth, Incorporated, Plaintiff–Appellee,

v.Sylvia Mathews Burwell, in her official capacity as Secretary of the U.S. Department of Health and Human Services

Thomas Perez, in his official capacity as Secretary of the U.S. Department of Labor;

Jacob J. Lew, in his official capacity as Secretary, U.S Department of Treasury;

United States Department of Health and Human Services; United States Department of Labor; United States Department of Treasury, Defendants–Appellants.

Nos. 14–20112

14–10661

14–10241

14–40212.

United States Court of Appeals, Fifth Circuit.

Sept. 30, 2015.

Eric C. Rassbach (argued), Diana Marie Verm, Becket Fund for Religious Liberty, Washington, DC, for Plaintiff–Appellee.

Kenneth Reed Wynne, Esq., Wynne & Wynne, L.L.P., Houston, TX, for Intervenor Plaintiff–Appellee.

Adam Craig Jed (argued), Megan Barbero, Esq., Alisa Beth Klein, Esq., Jacek Pruski, U.S. Department of Justice, Washington, DC, Daniel David Hu, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Defendant–Appellant.

Ayesha N. Khan, Esq., Mailee Rebecca Smith, Esq., Wasington, DC, Deborah Jane Dewart, Swansboro, NC, for Amicus Curiae.

Appeal from the United States District Court for the Southern District of Texas, Nos. 4:12–CV–3009, 1:13–CV–709, 4:12–CV–314, 4:12–CV–3009.

ON PETITION FOR REHEARING EN BANC (Opinion June 22, 2015, 793 F 3d 449 ).

Before REAVLEY, SMITH, and GRAVES, Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor ( FED. R.APP. P. 35 and 5TH CIR. R.35 ), the petition for rehearing en banc is DENIED.

In the en banc poll, 4 judges voted in favor of rehearing (Judges Jones, Clement, Owen, and Elrod), and 11 judges voted against rehearing (Chief Judge Stewart and Judges Jolly, Davis, Smith, Dennis, Prado, Southwick, Haynes, Graves, Higginson, and Costa).

* * * * * *

JONES, Circuit Judge, joined by CLEMENT and OWEN, Circuit Judges, dissenting from Denial of Rehearing En Banc,

This case goes to the heart of religious liberty protected by the Religious Freedom Restoration Act ("RFRA"). That the panel's decision, like those of other circuit courts, rejects these religious institutions' free exercise of their faith is ironic and tragic. How ironic that this most consequential claim of religious free exercise, with literally millions of dollars in fines and immortal souls on the line, should be denied when nearly every other individual religious freedom claim has been upheld by this court. How tragic to see the humiliation of sincere religious practitioners, which, coming from the federal government and its courts, implicitly denigrates the orthodoxy to which their lives bear testament. And both ironic and tragic is the harm to the Judeo–Christian heritage whose practitioners brought religious toleration to full fruition in this nation. Undermine this heritage, as our founders knew, and the props of morality and civic virtue will be destroyed.¹ As an example to other courts, ours should have corrected the panel's grave error en banc.

Because much has been written about these particular issues in a clear Eighth Circuit opinion² and several elegant dissents,³ we add only a few points.

The panel opinion denied religiously affiliated institutions' RFRA challenge to the "accommodation" provided by HHS in administering the Affordable Care Act ("ACA"). Under RFRA, the federal government may sustain a regulation against the claim that it substantially burdens a person's exercise of religion only if the government demonstrates a compelling interest and adopts the least restrictive means to further the interest. 42 U.S.C. § 2000bb–1(a), (b). The ACA requires covered employers to provide health care insurance that includes emergency contraceptive services.⁴ Only last year, the Supreme Court applied RFRA to exempt a corporation owned by sincere religious believers who opposed the contraceptive mandate from complying with the requirement. Burwell v. Hobby Lobby Stores, Inc., ––– U.S. ––––, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014).

The HHS "accommodation" offered in this case requires each religiously affiliated institution to fill out forms that effectuate contraceptive insurance coverage for their employees without direct payments by the institutions. These institutions assert, without dispute, that complying with the "accommodation" violates their sincerely held religious beliefs that they would become morally complicit in furnishing services that involve the destruction of human life at or shortly after conception. Also undisputed is that if they fail to comply with the "accommodation," they will incur millions of dollars in fines. The panel concluded, however, that the acts the institutions are required to perform "do not include providing or facilitating access to contraceptives." E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449, 459 (5th Cir.2015). The panel simply disagreed with the institutions' view of what Christian theology demands. Finding no "substantial burden" on the institutions' religious exercise if they fill out the required forms, the panel never addressed the government's compelling interest or whether the "accommodation" is the least restrictive means to furnish insurance for emergency contraceptive services.

Based on this court's precedents, this should have been an easy case for upholding religious liberty. Within the past decade, this court has acknowledged that a substantial burden was placed on a person's religious exercise in nine claims under RFRA or related federal and state statutes;⁵ this court denied only one claim that affected prison security, a compelling interest. The nine claims involved possession of eagle feathers for Native American worship; a Sikh's wearing a 3–inch kirpan (dagger); a Native American prisoner's possession of a lock of hair; a Muslim inmate's beard; long hair on a Native American high school student; Santeria practitioners' keeping and slaughtering four-legged animals; kosher food in prison; worship in a particular prison setting; and possession of stones by Odinists in prison.⁶ In none of the cases did this court find that the secular regulation did not impose a "substantial" burden on the believers' free exercise of religion. Yet when these institutions' beliefs are predicated on a long history of Christian moral theology concerning complicity in immoral conduct, Hobby Lobby, 134 S.Ct. at 2778 & n. 34, the panel here declared their concerns too "attenuated" to merit legal protection.

As a consequence of the panel's dismissal of the institutions' RFRA claim, three interrelated issues should have been addressed by this court en banc:

1. whether under RFRA, the courts decide the "substantiality" of a burden imposed by government regulations on sincerely held religious beliefs, or whether the believers' views are controlling;

2. whether the substantiality of a burden is measured by the degree of modification of the religious objector's behavior or by the severity of the penalty for noncompliance with the objectionable action;

3. whether under the "accommodation," the acts causing the provision of insurance coverage for services the institutions believe are immoral are truly "independent" of the institutions.

Had these issues been resolved favorably to the institutions, we would also have to rule on the compelling interest/least restrictive means aspects of the RFRA claim. Because the three threshold issues have sparked lengthy debate and dissent in nearly every other circuit, we will not revisit the arguments here.

Nevertheless, it seems decisive that the Supreme Court rejected the government's contention in Hobby Lobby that the link between mandated emergency contraceptive coverage and the destruction of human embryos was "too attenuated." Id. at 2777. The Court explained:

This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question

...