Notre Dame Files HHS Mandate Complaint Against Obama Administration

The text of the complaint is here.  A whopping 43 other Catholic dioceses and organizations have also filed suit today (whoa).  A few thoughts about this complaint:

  • The leading cause of action is RFRA (beginning at paragraph 202).  This makes sense as it is the strongest legal claim.
  • On the free exercise claim, have a look at paragraph 235.  ND obviously knows that alleging a substantial burden alone is not sufficient to make out an FE claim.  It therefore emphasizes that the mandate is not a neutral law of general application “because it is riddled with exemptions.”  That technically is a claim about general applicability.  A law can be facially neutral inasmuch as it does not by its terms single out religion for discriminatory treatment.  But even if it does not discriminate on its face, a law may not be generally applicable if it is loaded with exemptions.
  • Also look at paragraph 236.  ND is not only making a claim about the lack of general application.  It is also saying that the Administration made this regulation knowing that it would burden ND’s religious beliefs.  That knowledge is in turn made the basis for a claim of “targeting” of religion.  This claim, if accepted, implicates the “neutrality” component of the Smith test.  This is an interesting claim to watch, inasmuch as I am uncertain whether knowledge is sufficient to ground a claim of discriminatory purpose (in the criminal context, sometimes knowledge is deemed sufficient — see, e.g.,  the law of conspiracy).
  • ND is also making an “excessive entanglement” claim which implicates the Establishment Clause.  “Excessive entanglement” with religion is the third prong of the Court’s still operative Establishment Clause Lemon test, and it is something the Court at least indirectly emphasized in the recent Hosanna-Tabor decision.  This sort of claim is also raised at paragraph 270 and following.

Also have a look at our friend Rick Garnett’s comments at Mirror of Justice.

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