Is there religious liberty in the US or isn't there? That will be the argument of opponents of the contraception rule in Obamacare, that appears heading for a showdown in the Supreme Court perhaps as early as next term.
Two federal appeals courts have come down with opposite rulings on an important question related to the policy: whether for-profit businesses and their owners have the right to challenge in court the requirement that businesses provide contraception as part of their insurance coverage.
"I think it's likely the Supreme Court is going to end up deciding this thing, and the question is when," said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which has organized many of the 60-plus lawsuits challenging the contraception mandate.
The different rulings by the two federal appeals courts significantly increase the likelihood the mandate will end up with the Supreme Court -- possibly with a ruling just two years after the justices ruled ObamaCare's insurance mandate was constitutional.
Louise Melling, deputy legal director at the American Civil Liberties Union, which supports the contraception mandate, said it's "likely" the Supreme Court could hear oral arguments in its next term, depending on the timing of appeals.
"I would anticipate, when there's this much activity ... that the court will hear one of these," Melling said.
Last month, a panel of judges on the 3rd Circuit Court of Appeals ruled against the owners of a for-profit corporation who sued to block the mandate.
Members of the Hahn family, which owns a cabinet-making firm called Conestoga, said complying with the contraception requirement would violate their Mennonite faith.
But the 3rd Circuit said the family could not sue over a policy that applies to its company.
"Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything," the court said. "All responsibility for complying with the Mandate falls on Conestoga."
The owners' religious beliefs do not "pass through" to the corporation they own, the court said in its ruling.
A more abbreviated form of that ruling - "Corporations don't pray and have values," Melling said.
That may be true. And it might also be said, using that bit of illogic, that corporations have no use for health insurance because they don't get hurt or sick, but are required by law to have it. But the corporation also has no freedom of action. It is forced by the employer mandate to carry employee insurance or pay a tax. It's not a question of choice - which is the fundamental problem with the contraception mandate. Neither companies or individuals can "opt out" and end up being forced under threat of penalty to violate their religious tenets.
The Supremes won't be able to punt on this one. They're going to have to bite the bullet and come up with a broad ruling that covers the entire issue.