By Patricia Zapor • Catholic News Service • Posted February 15, 2014

WASHINGTON (CNS) — After ruling in 2012 that certain aspects of the Affordable Care Act stand up to constitutional scrutiny, the Supreme Court’s next dip into legal challenges to the law focuses on whether for-profit secular employers can claim religious rights protections from some provisions.

In addition to the standard briefs and replies filed by the two sides in each of the cases, the Supreme Court is being asked to consider the arguments raised by hundreds of organizations represented in “amicus” or friend-of-the-court briefs filed in advance of the court’s March 25 oral arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius.

The court is jointly hearing the cases, in which two federal appeals courts issued opposite rulings about the companies’ claims to a religious rights-based exemption from having to provide coverage for various forms of contraception in employee health insurance. The court is under no obligation to consider “amicus” briefs, but it typically does, and sometimes cites them in rulings.

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There’s been a great deal of attention within the Catholic Church, in particular, to whether church-affiliated institutions may be exempted from the contraceptive provisions — widely described as a mandate, the “HHS (Health and Human Services) mandate.” But the cases being heard in March deal only with how that mandate applies to for-profit, secular employers.

Cases over how the mandate is applied to nonprofit religious institutions, including the Little Sisters of the Poor, are still being addressed by lower courts and are unlikely to reach the Supreme Court before its next term.

Especially in comparison to the interest in lawsuits brought by dioceses, religious orders and church-run universities, there may be less public awareness of the Hobby Lobby and Conestoga Woods cases than there was of the Supreme Court’s highly publicized last venture into the ACA in 2012 primarily over the requirement that individuals buy health insurance. But the advocates for either side in the current cases are no less vehement that the outcome is crucial to how the 2010 health care law works — or doesn’t.

Among legal issues the briefs raise are questions based on past rulings about the circumstances under which an employer may claim faith-based exemption from various kinds of laws; about whether the federal government is trying to define religious beliefs and about the Religious Freedom Restoration Act, a 1993 law passed by Congress in an effort to reverse what was perceived as a rollback of Free Exercise rights in a 1990 Supreme Court ruling.

One key Supreme Court case raised in many of the “amicus” briefs on both sides is U.S. v. Lee, a 1982 unanimous ruling which said an Amish employer could not be exempted from paying Social Security taxes for employees of his for-profit business.

The court found that “while there is a conflict between the Amish faith and the obligations imposed by the Social Security system, not all burdens on religion are unconstitutional,” the court said. “The court may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.”

Amicus briefs supporting the government’s position that Hobby Lobby and Conestoga Woods should not be exempted argue, for example, that “the ACA does not require corporations to administer or use the contraceptive methods to which they object, nor does it require them to adhere to, affirm or abandon a particular belief,” said a brief on behalf of 91 members of Congress.

It quoted from Lee: “Every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs.”

On the other side, the U.S. Conference of Catholic Bishops argued that applying Lee to the companies should mean “the court should accept at face value Hobby Lobby’s and Conestoga’s earnest belief that they cannot in good conscience comply with the mandate. But instead of accepting that representation, the government would have this court conduct its own analysis of whether compliance with the mandate should be taken to violate those convictions.

“In other words, rather than analyzing whether the mandate puts substantial pressure on Hobby Lobby and Conestoga to abandon their religious opposition to providing the mandated coverage, the government would have this court evaluate whether compliance with the mandate amounts to a substantial violation of their religious beliefs.”

The dozens of amicus briefs filed on either side include sometimes unusual combinations of religious institutions, civil rights organizations, politicians, academics and secular employers. (See the American Bar Association’s list of the briefs in the two cases here.)

For instance, the partners in one brief supporting the for-profit employers were Drury Hotels, the National Catholic Bioethics Center, the Christian Medical Association and groups of pro-life nurses and doctors. In another, Ave Maria University, a Catholic institution, teamed up with the International Society for Krishna Consciousness, Crescent Foods and the Church of the Lukumi Babalu Aye, a Santeria church that brought a successful religious rights lawsuit against the city of Hialeah, Fla., over its law prohibiting animal sacrifices.

Among institutions filing solo briefs in support of the employers were the USCCB, the Knights of Columbus, the Catholic Medical Association, the Ethics and Public Policy Center and the Family Research Council.

Other joint briefs supporting the companies were filed by: 67 Catholic theologians and ethicists; several religion-related publishers and a coalition that includes the American Bible Society, the Anglican Church in North America, Prison Fellowship Ministries and the church of Jesus Christ of Latter-day Saints.

On the other side, one large-coalition brief was submitted on behalf of two dozen participating organizations including several Jewish institutions; Dignity USA and New Ways Ministry, both of which minister to gays and lesbians; the Hindu American Foundation; Catholics for Choice; the Women’s Ordination Conference and the Disciples of Christ Church.

A brief filed on behalf of 19 Democratic or independent senators in support of the government’s position was countered by one filed for four Republican senators on the other side. Another represented 20 church-state scholars who framed the cases in terms of Establishment Clause jurisprudence.