Plaintiffs argue, in essence, that the Court cannot look beyond their sincerely held assertion of a religiously based objection to the mandate to assess whether it actually functions as a substantial burden on the exercise of religion. But if accepted, this theory would mean that every government regulation could be subject to the compelling interest and narrowest possible means test of RFRA based simply on an asserted religious basis for objection. This would subject virtually every government action to a potential private veto based on a person’s ability to articulate a sincerely held objection tied in some rational way to a particular religious belief. Such a rule would paralyze the normal process of governing, and threaten to replace a generally uniform pattern of economic and social regulation with a patchwork array of theocratic fiefdoms.The court also rejected plaintiffs' free speech claim. Finally the court concluded that plaintiffs had not show the likelihood of irreparable harm for purposes of obtaining a preliminary injunction, since they can continue to refuse to offer contraception coverage while the case is pending. The tax penalty they will incur if they ultimately lose will likely not be assessed or paid until after the case is decided.
Plaintiffs appealed the district court's decision to the 6th Circuit and sought an injunction pending completion of the appeal. In a 2-1 decision,the 6th Circuit denied the injunction request but agreed to expedite the appeal of the district court's decision. In Autocam Corp. v. Sebelius, (6th Cir., Dec. 28, 2012), the majority concluded that plaintiffs had not shown a strong likelihood of success on the merits. Judge Rogers, dissenting, disagreed, saying:
Plaintiffs assert that it would violate their sincere religious beliefs to direct the company that they control to cut checks to pay directly for contraceptive services. They are okay, however, with giving discretionary healthcare money to their employees, who may then choose to buy such services. If walking this fine line is sincerely accepted as a condition for salvation, it is not up to the government to say that the line is too fine. Lots of religious lines are fine. Of course government is not bound by every religious fine line. But RFRA requires that the government interest be strong before forcing people to cross the line.On Dec. 31, the 6th Circuit denied plaintiffs' motion for reconsideration. (See prior related posting.) [Thanks to Melissa Rogers for the lead.]
