The Background: According to the Becket Fund for Religious Liberty, the government had previously announced plans to create a new rule, but had not yet taken the steps necessary to make that promise legally binding. Lower courts dismissed the colleges' cases while the government contemplated a new rule, but the Court of Appeals for the District of Columbia Circuit decided the cases should stay alive while it scrutinizes whether the government will meet its promised deadlines.
"The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom," said Kyle Duncan, Becket's general counsel. "The court is not going to let the government slide by on non-binding promises to fix the problem down the road."
The court based its decision on two concessions that government lawyers made in open court. First, the government promised "it would never enforce [the mandate] in its current form" against Wheaton, Belmont Abbey, or other similarly situated religious groups. Second, the government promised it would publish a proposed new rule "in the first quarter of 2013" and would finalize it by next August. The court deemed the concessions a "binding commitment" and has retained jurisdiction over the case to ensure the government follows through.
"This is a win not just for Belmont Abbey and Wheaton, but for all religious non-profits challenging the mandate," Duncan said. "The government has now been forced to promise that it will never enforce the current mandate against religious employers like Wheaton and Belmont Abbey and a federal appellate court will hold the government to its word."
Why It Matters: While the ruling is a positive step forward, it's effect is rather limited. In Christianity Today, Carl Esbeck, a church-state law expert at the University of Missouri, explains that while the colleges got the relief they were seeking, the threat to religious liberty has not abated. "The result of the three-judge panel's opinion is that the colleges will continue to have to wait, Esbeck said, "and there's no promise that the new rule will take care of Wheaton or Belmont Abbey. The only promise is that the existing rule won't be applied."
The court noted that based upon the government's "binding commitment" the two colleges' cases should be decided on the merits of their challenge at a future time.
The Contraceptive-Abortifacient Mandate
Updates on the Contraceptive-Abortifacient Mandate