Roman Catholic Archbishop Washington v. Sebelius

Decision Date20 December 2013
Docket NumberCivil Action No. 13-1441 (ABJ)
PartiesROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, et al., Plaintiffs, v. KATHLEEN SEBELIUS, Secretary, U.S. Department of Health and Human Services, et al., Defendants.
CourtU.S. District Court — District of Columbia

ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, et al., Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary, U.S. Department of Health
and Human Services, et al., Defendants.

Civil Action No. 13-1441 (ABJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DATE: December 20, 2013


MEMORANDUM OPINION

This case concerns the requirements imposed on certain employers under the Affordable Care Act to offer healthcare plans to their employees that provide cost-free coverage for contraceptive services. Plaintiffs the Roman Catholic Archbishop of Washington ("the Archdiocese"), the Consortium of Catholic Academies of the Archdiocese of Washington, Inc., Archbishop Carroll High School, Inc., Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc., Mary of Nazareth Roman Catholic Elementary School, Inc., Catholic Charities of the Archdiocese of Washington, Inc., Victory Housing, Inc., the Catholic Information Center, Inc., Catholic University of America, and Thomas Aquinas College have filed this case against defendants Kathleen Sebelius, the Secretary of Health and Human Services; Thomas Perez, the Secretary of Labor; Jacob Lew, the Secretary of the Treasury; the U.S. Department of Health and Human Services; the U.S. Department of Labor; and the U.S. Department of the Treasury. In their complaint, plaintiffs allege that the contraceptive mandate violates the Religious Freedom Restoration Act ("RFRA") as applied to them, as well as the Free Exercise Clause, the

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Free Speech Clause, and the Establishment Clause of the First Amendment to the U.S. Constitution. Compl. ¶¶ 237-312 [Dkt. # 1]. They also assert that defendants violated the Administrative Procedure Act and advanced an erroneous interpretation of the religious employer exemption to the mandate when they adopted the contraceptive mandate in its final form. Id. ¶¶ 313-39.

Plaintiffs filed a motion for preliminary injunction in light of the impending January 1, 2014 contraceptive mandate enforcement date. Pls.' Mot. for Prelim. Inj. [Dkt. # 6]. Pursuant to Federal Rule of Civil Procedure 65(a)(2), this Court consolidated the motion with the merits on September 26, 2013. Defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to dismiss plaintiffs' Establishment Clause count under Federal Rule of Civil Procedure 12(b)(1). Defs.' Mot. to Dismiss or, in the alt., for Summ. J. ("Defs.' Mot.") [Dkt. # 26]; Defs.' Mem. in Supp. of Mot. to Dismiss or, in the alt., for Summ. J. ("Defs.' Mem.") [Dkt. # 26-1]. They also moved, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. Defs.' Mot. at 1; Defs.' Mem. at 9. Plaintiffs then filed a cross-motion for summary judgment. Pls.' Opp. & Cross-Mot. for Summ. J. ("Pls.' Opp. & Cross-Mot.") [Dkt. #27-1]. The case has been fully briefed, and the Court held oral argument on November 22, 2013.

For the reasons stated below, the Court will grant defendants' motion for summary judgment with respect to Catholic University's RFRA claim in Count I, and all of the plaintiffs' Free Exercise claims in Count II, compelled speech claims in Count III, denominational preference claims in Count V, internal church governance claims in Count VI, and APA contrary

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to law claims in Count VII.1 The Court will also grant defendants' motion to dismiss the RFRA claims in Count I that are advanced by those plaintiffs who are covered under the Archdiocese's healthcare plan, and all of the plaintiffs' Establishment Clause challenges to the IRS factors in Count V and APA erroneous interpretation claims in Count VIII for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Finally, the Court will grant Thomas Aquinas College's cross-motion for summary judgment on its RFRA claim in Count I, and all of the plaintiffs' cross-motions for summary judgment on their Free Speech claims asserted in Count IV.

Plaintiffs allege that the contraceptive mandate burdens their religious exercise because it requires them "to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs." Compl. ¶ 241. This is practically identical to the claim that the Archdiocese and four of the other plaintiffs advanced in the suit they filed in this Court in May of 2012. See Roman Catholic Archbishop of Washington v. Sebelius, No. 12-0815, Compl. ¶ 181 [Dkt. # 1] ("The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs."). Plaintiffs' religious beliefs remain the same, but in the interim, the law has changed. Defendants have created an accommodation for the specific purpose of alleviating the burden that the mandate imposes on religious organizations that are not entirely exempt. And in the case of all but one of the plaintiffs - the self-insured Thomas Aquinas College - the Court finds that the law no longer

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requires plaintiffs to provide, pay for, or facilitate access to contraception. Thus, it does not require plaintiffs to "modify [their] behavior and to violate [their] beliefs," as the Supreme Court defined an unacceptable burden more than thirty years ago in Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 718 (1981), or to "meaningfully approve and endorse the inclusion of contraceptive coverage" in their plans, as the D.C. Circuit described the burden in the context of the mandate without the accommodation just last month. Gilardi v. U.S. Dep't of Health & Human Servs., 733 F.3d 1208, 1217 (2013).

Religious organizations like Catholic University - that offer health insurance to their employees through an insured group plan - may avail themselves of the accommodation simply by memorializing their objection to the mandate in writing. The insurer is obligated under the rules to exclude the coverage from the University's plan and to provide and pay for the coverage itself, and therefore, as the Court explains in detail below, Catholic University has no grounds for a RFRA claim. Plaintiffs contend that the act of self-certifying - an act that consists of nothing more than plaintiffs' reiteration of their already public objection to participation in the requirements of the mandate - is a substantial burden on the exercise of their religion in and of itself. But that argument so blurs the demarcation between what RFRA prohibits - that is, governmental pressure to modify one's own behavior in a way that would violate one's own beliefs - and what would be an impermissible effort to require others to conduct their affairs in conformance with plaintiffs' beliefs, that it obscures the distinction entirely. RFRA was enacted to shield religious adherents from governmental interference with their own religious exercise and to protect them from being required to perform odious acts themselves. Plaintiffs articulate this distinction clearly: "Plaintiffs simply invoke RFRA to vindicate the principle that the Government may not force them, in their own conduct, to take actions that violate their religious

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conscience." Pls.' Mem. in Supp. of Mot. for Prelim. Inj. ("Pls.' Mot.") at 20 [Dkt # 6-1]. Since the rules that apply in the insured group plan context do not involve that compulsion, they survive the RFRA challenge. RFRA is not a mechanism to advance a generalized objection to a governmental policy choice, even if it is one sincerely based upon religion.

But Thomas Aquinas College is covered by the set of regulations directed towards religious organizations that are self-insured, and unlike all of the other plaintiffs with self-insured plans, Thomas Aquinas College does not offer its employees coverage through a plan offered by the church, which cannot be compelled to comply with the mandate. In the case of a self-insured entity like Thomas Aquinas, the newly enacted regulations fall short of the mark. Since the accommodation imposes a duty upon the religious organization to contract with a willing third-party administrator that will arrange for the payments for contraceptives, they compel the organization to take affirmative steps - to do something - that is in conflict with the tenets of its faith. And therefore, defendants are enjoined from enforcing the mandate against Thomas Aquinas College.

RFRA involves the application of a more lenient standard than the one that applies under the First Amendment, though, and all of the plaintiffs have failed to establish any violation of the Free Exercise Clause. The contraceptive coverage law is neutral and generally applicable to all employers, and it does not target religion. Nothing about the regulatory scheme violates the Establishment Clause either. The fact that the Archdiocese, a church, is completely exempt, while the educational and charitable organizations must seek relief through the accommodation does not constitute unlawful discrimination among denominations, and it does not entangle the government in religious affairs.

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With one important exception, the law also passes muster under the Free Speech Clause of the First Amendment. The fact that counseling is included within the set of services to be offered, and the requirement that a religious organization certify its objection to providing contraceptive services to be eligible for the accommodation do not violate the Constitution. But defendants cannot...

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