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Friday, February 21, 2014

Ind. Decisions - 7th Circuit decides one Indiana case today, Notre Dame v. Sebelius [Updated]

In University of Notre Dame v. Sebelius (ND Ind., Simon), a 44-page, 2-1 opinion, Judge Posner affirms the district court's denial of preliminary relief. His opinion, joined by Judge Hamilton, concludes:

On January 28 the university filed a renewed motion for an injunction pending appeal—it had filed such a motion on December 23, but we had denied that motion a week later when we ordered expedited briefing of the appeal. The sole ground for the renewed motion was the Supreme Court’s order of January 24 in the Little Sisters case, 2014 WL 272207. That ground was an odd one for Notre Dame to assert, because the university disagrees with the Court’s order. The Court’s order conditioned the injunction pending appeal in that case on the Little Sisters’ sending a letter to the government declaring its opposition to paying for contraceptive services—and at the oral argument of our case Notre Dame told us that it would consider sending such a letter an infringement of its religious freedom. Another distinction between that case and this one is that unlike Meritain, Little Sisters’ third‐party administrator, Christian Brothers, is a “church plan” administrator and so wouldn’t provide contraceptive services anyway, or be required to do so. We now deny the renewed motion for an injunction pending appeal as moot because the appeal has been resolved.

Judge Flaum's dissent begins on p. 31:

While Notre Dame’s appeal from the district court’s denial of a preliminary injunction was pending before this court, we granted the students’ motion to intervene. Notre Dame then moved to dismiss the appeal in order to conduct additional discovery in the district court. Dismissal would not prejudice the government or the student‐intervenors. Nor would it inhibit this court’s review of the ultimate issues at a later stage in the proceedings. Because I see no reason not to “accept plaintiffs’ decision to proceed to trial without interim relief,” Creaton v. Heckler, 781 F.2d 1430, 1431 (9th Cir. 1986), I would grant Notre Dame’s motion and dismiss this appeal.

The majority does not agree, however, and so the appeal remains before us. Faced with the merits, I conclude that Notre Dame has made out a credible claim under the Religious Freedom Restoration Act. I therefore would grant the university a preliminary injunction forbidding the government from penalizing Notre Dame for refusing to comply with the self‐certification requirement.

[Updated at 7:30 PM] Here is good coverage of the decision from Josh Gerstein of Politico. A quote:
"If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to 'trigger' the provision of female contraceptives," Posner wrote in an opinion joined by Judge David Hamilton.

Posner also noted that the university submitted the form late last year, albeit unwillingly, so it was unclear what precisely the court was being asked to do about it.

Posted by Marcia Oddi on February 21, 2014 07:00 PM
Posted to Ind. (7th Cir.) Decisions