• Mario Nicolais

Religious liberty cases pit competing rights

Two weeks ago, the 10th Circuit Court of Appeals ruled against the Little Sisters of the Poor challenge to the Affordable Care Act’s contraception mandate. The nuns claim the law violates the organization’s right to religious freedom. Last week, they decided to appeal the case to the U.S. Supreme Court.


The Little Sisters of the Poor v. Burwell decision is just one of several high-profile Colorado cases centered on religious liberty working their way through the courts. Whether they’re about nuns and contraception or bakers and weddings, all have sparked heated controversy.


Unfortunately, the complexities of constitutional law do not lend themselves well to soundbites or slogans (or newspaper columns, for that matter). This is particularly true when the exercise of rights by one individual affects the rights of another, and competing constitutional rights collide, such as freedom of expression and equal protection.


One of the first questions courts must tackle is the actual nature of the right. Any given constitutional right usually has several different classes of protection. For example, while the First Amendment protects “free speech,” core political speech is afforded more protection than simple commercial speech. Consequently, an organization protesting government action is not subject to the same restrictions as a retailer advertising a product.


In religious liberty cases, the nature of the right often boils down to what categories of actions are protected as core elements of religious exercise. This is frequently where the specific facts in a religious liberty case become crucial. For example, while baking a cake is typically viewed solely as a commercial venture, Lakewood’s Masterpiece Cakeshop claimed it could refuse service based on the religious beliefs of its owner. In ruling against the cake shop, the original court highlighted the cake shop’s refusal to make a wedding cake for a gay couple — regardless of design or message. This stands in stark contrast to the bakery that agreed to bake a cake for a Christian man but refused to include specific anti-gay messages on the cake that the shop’s owner believed were “offensive.”


The nature of the right is critical because it often guides the court’s decision on the standard of review and burdens to be applied in each case. For the Little Sisters of the Poor, this became the emphasis of the court battle. The majority of the court’s decision is dedicated to determining whether the contraceptive mandate was a “substantial burden” on the nuns’ religious exercise and, consequently, whether the law must be reviewed under “strict scrutiny.” In the legal world, these are terms of art with specific meanings and implications that provide greater shelter to anyone claiming a constitutional protection.


For the Little Sisters of the Poor, the appellate court’s decision turned on the exemption for religious organizations from the contraceptive mandate. Because the Little Sisters of the Poor could seek this exemption, the court found the mandate did not impose a substantial burden, the law did not need to meet strict scrutiny, and the nuns were not entitled to increased protection.


Whether the court applied the analysis properly or not will now be a question for the nation’s highest court.



Mario Nicolais is an attorney and legal scholar at the Denver law firm of Hackstaff & Snow LLC.


Read this column from The Colorado Statesman online in ColoradoPolitics.com.

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