First Liberty Institute Exposes Obamacare’s Continued Religious Liberty Violations in Supreme Court Amicus Brief

January 21, 2016

First Liberty filed a friend of court brief last week at the United States Supreme Court in Zubik v. Burwell—one of the most consequential cases before the Court this year.

“If the Supreme Court rejects the arguments of the plaintiffs in Zubik v. Burwell, First Liberty’s clients—and all faith-based non-profit ministries—will face damaging consequences and suffer the loss of their religious liberty,” Kelly Shackelford, President and CEO of First Liberty said.

“Not only will that loss of freedom affect the ministries—it will hurt the millions of people those ministries help every year,” Shackelford added.

The outcome of the case will determine whether the Obamacare “Abortion Pill” Mandate violates the religious liberty rights of faith-based, non-profit ministries according to the Religious Freedom Restoration Act (RFRA). First Liberty filed the amicus brief on behalf of its clients: four retirement communities and two colleges, each a ministry of The Christian and Missionary Alliance (CMA) denomination.


The HHS “Abortion Pill” Mandate is a portion of the Patient Protection and Affordable Care Act, also known as “Obamacare,” that forces group health insurance plans to provide coverage for abortion-inducing drugs or devices – for example, Plan B (the “day after pill”), Ella (the “week after pill”), and intrauterine devices (“IUD”) that make the womb hostile to developing human life.

The HHS “Abortion Pill” Mandate exempts churches, church denominations, and church auxiliaries, but does not provide the same exemption for faith-based ministries like the Little Sisters of the Poor (one of many plaintiffs in Zubik v. Burwell) or the retirement and academic ministries of The Christian and Missionary Alliance – represented by First Liberty .


In Hobby Lobby v. Burwell, the Supreme Court ruled in favor of Hobby Lobby Stores, Inc.—establishing that religiously affiliated, family-owned for-profit businesses could not be forced to violate their beliefs by complying with the HHS “Abortion Pill” Mandate and providing certain kinds of abortion-inducing drugs or devices to their employees. It was a substantial victory for religious freedom—but not a total victory.

The decision was limited to the protection of for-profit businesses, leaving non-profit ministries—which fall neither within the exempted church category nor the Hobby Lobby precedent—subject to the coercive demands of the federal government.

Since Obamacare became law, dozens of faith-based non–profit ministries have brought their cases before courts, hoping to achieve the same kind of legal relief to accommodate their sincerely held religious beliefs as family-owned businesses under the Hobby Lobby decision. But time and again, the Department of Justice has urged the federal appellate courts to rule against them.

In September 2015, however, the Eighth Circuit Court of Appeals shook things up, becoming the first circuit court to reject the government’s arguments and rule in favor of the religious liberty rights of faith-based non-profits. This ruling caused a circuit split, taking the issue to the United States Supreme Court, where it is now.


Filed at the Supreme Court on January 11, 2016, First Liberty’s brief makes several key arguments explaining why the HHS “Abortion Pill” Mandate is not only problematic for non-profit ministries—but a violation of established religious liberty rights, including protections in the 1993 Religious Freedom Restoration Act (RFRA), which provides clear protections for the religious liberty of all citizens.

As First Liberty’s brief states:

In RFRA, Congress made a clear determination about the importance of religious liberty—including the right to act in accordance with one’s faith. Congress declared, as a default rule, that religious beliefs must be respected, even if that means religious believers have to be exempted from otherwise generally applicable laws.

The First Liberty brief exposes how this has been flagrantly violated by the Obama administration unlawfully shrinking the concept of religious protection.

The administration has assumed the authority to declare that when it comes to matters of healthcare, the only religious institutions that have a right to follow their consciences are houses of worship.

This effectively restricts the implementation of one’s religious beliefs to the four walls of the church—not at all in line with RFRA or the First Amendment to the Constitution, which states that the “free exercise” of one’s religion shall not be prohibited. First Liberty argues that,

…[D]rawing a distinction between religious believers based on the structure in which they put their faith into practice makes no sense. Just as religious beliefs do not become any less sincere or deserving of protection when the believer decides to make a living using a business organized in the corporate form, seeHobby Lobby, 134 S. Ct. at 2769–72, religious beliefs do not become any less sincere or deserving of protection when the believers decide to pursue educational and charitable endeavors in accordance with their faith, cf. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 707–09 (2012).


First Liberty ’s brief argues that by making the executive decision to provide complete exemptions to churches and for-profit businesses—but not non-profit ministries—HHS is “draw[ing] categorical distinctions between religious believers when Congress decided not to draw any such distinction in RFRA,” stating,

Notably, nowhere does RFRA provide an administrative agency the power to do what HHS has done here: divide religious objectors into favored and disfavored groups based on a completely irrelevant distinction in their tax-exempt status—protecting the religious liberty of churches subject to an automatic tax exemption, while substantially burdening the identical sincere beliefs of other religious organizations.

Exposing the heart of the issue at stake, First Liberty ’s amicus brief reveals that,

HHS’s actions in implementing the ACA [Affordable Care Act] demonstrate that it sees RFRA’s command to protect religious exercise as a secondary consideration, subordinate to HHS’s regulatory goal of distributing contraceptives.


This ongoing issue—and the potential impact of First Liberty ’s arguments before the Supreme Court—matter for several reasons.

First, the impact of religious non-profit ministries of all kinds is too significant to measured. Consider the clients of First Liberty alone:

  • Insight for Living Ministries (IFL) – this Bible-teaching ministry of renowned pastor Chuck Swindoll reaches thousands of people around the world with biblical counseling and guidance. Because their core values do not allow the provision of the kind of abortion-inducing contraceptives included in the HHS mandate, IFL finds itself deep in a legal battle.
  • The Christian and Missionary Alliance (CMA) – this denomination also has worldwide impact, with 20,000 churches internationally and multiple other faith-based organizations that, though not churches, are affiliates or subsidiaries affiliated with CMA and aligned its core values. First Liberty is currently representing four CMA retirement communities and two CMA colleges in a lawsuit challenging the constitutionality of the HHS Mandate.

There are dozens more non-profit faith-based ministries that are currently waiting on the Supreme Court to decide the legality of the HHS Mandate and to determine if they will be permitted to freely exercise their sincere religious beliefs—including the belief that is morally and ethically wrong to participate in the termination of unborn human life. Should the federal government prevail in this battle, religious non-profit ministries all around America will be affected, and their impactful work compromised.

By limiting true exemptions to the HHS “Abortion Pill” Mandate to churches, church denominations, and church auxiliaries, the federal government is attempting to limit the exercise of religious beliefs to the four walls of the church. If churches become the only places allowed to operate according to religious principles, the free exercise of religion in America will be all but lost. True religious liberty requires that individuals and organizations operated by individuals be permitted to exercise their faith in all areas of life.

Historically, First Liberty ’s friend of the court briefs have had far-reaching impact, influencing court opinions and helping to set precedents that have protected protecting religious freedom in subsequent cases. National Review recognized First Liberty ’s brief in this case as “noteworthy.”

“Our brief argues that HHS violated the Religious Freedom Restoration Act (“RFRA”) by creating a bifurcated system that gives full protection to favored religious objectors but only partial protection to disfavored religious objectors, like The Christian Missionary Alliance colleges and retirement communities represented by First Liberty ,” said Matthew Kacsmaryk, Deputy General Counsel for First Liberty. “From the founding of the Republic, we have strived to protect conscientious objectors who peaceably seek exemptions to government programs, policies, and procedures that violate their sincere religious beliefs. This proud American tradition is essential to true religious freedom.”

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