On March 23rd, the U.S. Supreme Court heard oral arguments in seven cases challenging the HHS mandate as applied against non-exempt religious organizations. One of those cases was the American Freedom Law Center’s case filed on behalf of Priests for Life.
With the recent passing of Justice Scalia, it was widely expected that the case would result in a 4-4 stalemate, or worse, a 5-3 loss, with Justice Kennedy siding with the four liberal justices.
Surprisingly, several days after oral argument, the Court issued an order asking the parties to file a supplemental brief on whether coverage for the objectionable services could be provided without the challengers’ involvement and thus without violating their religious beliefs.
This was an unexpected, but certainly welcomed, request.
By all accounts, it means that we likely convinced a majority of the justices that the current regulatory scheme imposes a substantial burden on religious exercise, and now the legal burden shifts to the government to demonstrate that the regulatory scheme advances a compelling government interest and that there are no less restrictive alternatives for the government to accomplish its interests.
The order itself suggests that there are such alternatives available, and our supplemental brief, which we filed yesterday, demonstrates that those alternatives do exist, which should mean that we win this challenge under the Religious Freedom Restoration Act (RFRA).
In any event, we will likely know the answer this June.