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After Hobby Lobby Comes Judge Pryor

via National Review Online

quin hillyer'Two left-leaning judges on the Eleventh Circuit Court of Appeals showed on Monday what the Obama administration should do regarding the many remaining cases involving the HHS abortifacients mandate: Give up.

It does not take much to read between the lines in the injunction that a unanimous three-judge panel of the Eleventh Circuit granted Monday afternoon in favor of Eternal Word Television Network, which runs Catholic-themed programming. In the case of EWTN v. Secretary of HHS, it looks to me as if two of the three judges were not eager to grant the injunction but felt compelled to that action by the Supreme Court’s decision on Monday in the Hobby Lobby case. Those two judges — Beverly Martin and Adalberto Jordan — were both appointed to federal district courts by Bill Clinton and both elevated to the appeals court by Obama. Both are considered at least moderately liberal.

The order begins as follows (emphasis is mine): “In light of the Supreme Court’s decision today in [the Hobby Lobby case], we grant the motion of Eternal Word Television Network.” The brief order ends with an unusual and unnecessary line: “We express no views on the ultimate merits of EWTN’s appeal in this case.”

On one hand, that is a tautology: Any injunctive order without a majority opiniongavel accompanying it will by definition “express no views” on the ultimate merits, because an injunction is not a decision on the merits. On the other hand, injunctions are not supposed to be issued unless the court believes there is a “substantial” likelihood that the party granted the injunction will win on the merits. For the majority to fail to explain its injunctive order other than via one clause referencing a Supreme Court case, and then to go out of its way to cast doubt on the strength of the ultimate merits of the grantee’s case, shows only a grudging acceptance of Monday’s undeniable signal from the high court.

It was left to the third judge on the panel, William H. Pryor, to offer a 27-page explanation — brilliantly argued — of why EWTN does indeed enjoy the “substantial” likelihood of ultimate victory. (More on Pryor’s opinion later.) The overall effect reads as if Pryor, with the weight of Hobby Lobby behind him, pulled the other two judges kicking and screaming into what they considered an unpleasant course of action.

Why are these dynamics important? Because if the force of the high court’s decision in Hobby Lobby is such that two otherwise unwilling judges recognize that it weighs heavily in EWTN’s favor in its largely-but-not-entirely-related case, the likelihood is high that the Obama administration will now suffer a whole series of losses in cases against the HHS mandate. Those cases are brought by organizations such as EWTN, the Little Sisters of the Poor, and faith-affiliated colleges — groups that are not themselves churches but that provide services that are clearly church-related. As it is, the administration has already lost about 80 percent of the procedural or lower-court decisions in these cases; that number might now rise awfully close to 100 percent.

Granted, the issue in Hobby Lobby is different from the one in these other cases, in that the former involved closely held, for-profit corporations, while the others involve church-connected nonprofits (giving the latter even stronger religious-liberty claims). Mitigating that advantage, at least slightly, is the fact that these organizations, unlike the corporations, do at least enjoy (in most cases) a nominal accommodation supposedly relieving them of complicity with provision of abortifacients. Therefore, the Left will try to make the case not about religious liberty, but about the supposed comprehensiveness of the “accommodation,” and will argue that the objections of EWTN, the Little Sisters, and others amount to mere phantom claims of victimhood.

They are extremely unlikely to succeed, for three reasons. First, there is almost no way that the five justices who ruled in favor of Hobby Lobby and Conestoga Wood will turn around and rule against the Little Sisters of the Poor. John Roberts, with his always-sensitive political antennae, would croak before allowing the court to look more sensitive to for-profit corporations than it is to famously kind-hearted nuns.

Second, there is a far greater likelihood that the court’s four liberals will join the conservatives for EWTN and the Little Sisters than they did for Hobby Lobby. After all, these same liberals already joined a unanimous opinion in favor of a church-affiliated school in the Hosanna-Tabor case even when the opponent was claiming employment discrimination — a much stronger legal claim than the supposed right to have somebody else subsidize one’s contraceptives. Furthermore, two of the four justices refused to join a key part of Justice Ruth Bader Ginsburg’s dissent in Hobby Lobby, which leaves them a little more free to distinguish that case from EWTN and its legal relatives.

Third, Judge Pryor’s opinion in support of the injunction in EWTN is such a tour de force that it provides a perfect template for an eventual Supreme Court decision in favor of the Catholic TV network, leaving no reasonable loopholes to worry the legal conscience of any doubting Anthonys on the high court.

Pryor quoted Hobby Lobby directly to say that “it is not for us to say that [the network’s] religious beliefs are mistaken or insubstantial.” Continuing to cite Hobby Lobby, he wrote: “Courts must instead ‘determine whether the line drawn [by the network] reflects an honest conviction, and there is no dispute that it does.’” That honest conviction, Pryor added (no longer quoting the Supreme Court), is that even the so-called accommodation offered it by HHS will require EWTN’s complicity in a scheme that is “condemned by the principle of material cooperation in evil.”

This isn’t a newfound objection to one-degree-of-separation accommodations, Pryor explained. Instead, it is thoroughly grounded in a specific decision handed down by Pope John Paul II in a German case where churches in Germany were asked to sign “certificates” attesting that women seeking an abortion had first secured “counseling” from the church. In effect, the certificate was used as a prerequisite for an abortion — which is very closely analogous to the “Form 700” that HHS wants EWTN to provide to the insurance provider “in order” for the insurer to provide the abortifacient coverage to which EWTN objects. The pope ordered the German churches not to comply.

In short, the church had already established its belief that secondhand complicity is still forbidden, because the church will “actually become the agent that enables a host of immoral actions to follow.” Having thus established this standard well before the Obamaites even dreamed of the HHS mandate, it is not for the courts to decide that the network’s belief is insubstantial. Otherwise, judges effectively would be dictating a faith denomination’s doctrine. One can imagine few violations of religious liberty that would be worse.

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