While the Supreme Court reinforced in Hobby Lobby that we should defer to the reasonableness of the appellees’ religious beliefs, this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on the appellees’ religious exercise. This involves an assessment of how the regulatory measure actually works. Indeed, how else are we to decide whether the appellees’ religious exercise is substantially burdened?
... [W]e cannot agree with the appellees’ characterization of the effect of submitting the form as triggering, facilitating, or making them complicit in the provision of contraceptive coverage. At oral argument, the appellees argued that it was not merely the filing of the form that imposed a burden, but, rather, what follows from it. But free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise.The court also rejected the argument that the regulations improperly partition the Catholic Church by preventing religious non-profits from claiming the total exemption available to the diocese with which they are affiliated. Pittsburgh Post-Gazette reports on the decision.
UPDATE: On May 6, the mandate was stayed (full text of order) pending U.S. Supreme Court action in Zubik v. Burwell which raises similar issues. (See prior related posting.)
