Pending December Hearing, Religious Colleges Submit Final Brief to D.C. Circuit

Wheaton and Belmont Abbey colleges call for relief from HHS mandate

For Immediate Release: November 19, 2012
Contact: Jeff Gasser, 202.349.7201, jgasser@becketfund.org>

WASHINGTON, DC – On Friday, The Becket Fund for Religious Liberty filed its reply brief before the D.C. Circuit Court of Appeals, asking the Court to reinstate two HHS mandate lawsuits after the trial court held that the cases were premature due to the government’s one-year “safe-harbor.” This is the first time a federal Court of Appeals will consider the HHS mandate. The D.C. Circuit is set to hear oral arguments on the case December 14.

“The safe harbor’s protection is illusory,” said Kyle Duncan, General Counsel for The Becket Fund for Religious Liberty. “Even though the government won’t make religious colleges pay crippling fines this year, private lawsuits can still be brought, schools are at a competitive disadvantage for hiring and retaining faculty, and employees face the specter of battling chronic conditions without access to affordable care.  This mandate puts these religious schools in an impossible position.”

Wheaton and Belmont Abbey are not the only schools to feel the immediate harms of the government’s HHS mandate. In October, Ave Maria University filed a declaration in a separate lawsuit in federal court detailing the “excessive burdens and pressures” that are preventing the school from filling faculty positions.

On September 20, 2012, the U.S. Court of Appeals for the DC Circuit consolidated Belmont Abbey College v. Sebelius and Wheaton College v. Sebelius in an expedited appeal against the HHS Mandate, which forces the two religious schools to violate their deeply held religious convictions or pay crippling fines.

Highlights from Becket Fund’s brief:

  • “[T]he final rule challenged here is the law right now, and it is not up to the Colleges or this Court to predict the future. “ (P 4)
  • “The Colleges should not be forced to wager that the Departments will relieve the mandate’s burden on their religious exercise when—to date—the Departments have never acknowledged that the burden exists.” (P 16)
  •  “[T]he mandate is a final rule that presently applies to the Colleges and presently interferes with their budgeting, planning, and hiring.” (P 3)
  • “Yet instead of litigating the Colleges’ claims on the merits, the Departments have reacted to them with regulatory gamesmanship.” (P 2)
  • “The Departments cannot possibly meet [their] burden by pointing to a temporary one-year delay on government (but not private) enforcement accompanied by a vague, non-binding promise to fix it in the future.” (P 4)
  • “In short, delaying this lawsuit will burden the Colleges in numerous ways.” (P 27)

There are now over 40 separate lawsuits challenging the HHS mandate, which is a regulation under the Affordable Care Act (aka “Obamacare”).

The Becket Fund led the charge against the unconstitutional HHS mandate, and in addition to Wheaton and Belmont Abbey represents Hobby Lobby, Colorado Christian University, Houston Baptist University, East Texas Baptist University, the Eternal Word Television Network, and Ave Maria University.

The Becket Fund for Religious Liberty  is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions—from Anglicans to Zoroastrians. For 18 years its attorneys have been recognized as experts in the field of church-state law. The Becket Fund recently won a 9-0 victory in Hosanna-Tabor v. EEOC, which The Wall Street Journal called one of “the most important religious liberty cases in a half century.”

For more information, or to arrange an interview with one of the attorneys, please contact Jeff Gasser, Communications Associate, at jgasser@becketfund.org or call 202.349.7201.

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Additional Information

Becket Fund’s Reply Brief (November 16, 2012)

Becket Fund’s Appeal Brief (October 5, 2012)

Briefing Schedule – U.S. Court of Appeals, D.C. Circuit

Wheaton College Case Page (Legal Documents, Resources, FAQ’s)

Belmont Abbey College Case Page (Legal Documents, Resources, FAQ’s)

HHS Information Central (all 40 HHS cases, interactive map, resources, legal documents, FAQ’s, and more)