Since its first introduction, the federal contraception mandate has drawn controversy, with hundreds of employers saying it forces them to violate their sincerely-held religious beliefs.   

Now, one lawyer is arguing that the Obama administration unfairly relied on tax law to determine which institutions were religious enough to get an exemption from the mandate.

“The distinction they ended up making was simply whether you file a 990 [tax form] or not. That’s an absurd distinction to make,” Carrie Severino of the Judicial Crisis Network told CNA.

“At the end of the day, it’s really a matter of whether we’re going to make religious freedom rights depend on arbitrary details of the tax law, or whether they should really be based on someone’s sincere religious beliefs,” she added.

According to internal e-mails obtained through Freedom of Information Act requests, the administration used tax law — and not religious mission or affiliation — to determine which religious groups would be exempt from the contraception mandate, Severino said.

Therefore, some organizations that were not direct auxiliaries of churches — such as Catholic universities and hospitals — were required to follow the mandate simply because of their tax status.

The administration gave these religious non-profits “second-class status,” Severino argued.

“The problem is that they [the administration] distinguish and give lesser treatment, kind of second-class religion status to groups like the Little Sisters of the Poor, like Catholic Charities, like religious universities,” she said. “If they were really concerned about protecting religious freedom, then they would have made the distinction…based on something about their religious practice.”

The Little Sisters of the Poor’s case before the Supreme Court is joined with six other cases against the contraception mandate from various religious non-profits, including the Archdiocese of Washington and Christian colleges.

Severino filed an amicus brief on behalf of the Little Sisters of the Poor in their case.

At issue is the administration’s mandate that employers provide coverage for sterilizations and contraceptives, including some that could cause early abortions, in employee health plans.

The religious exemptions to the mandate are narrow, covering mostly houses of worship and their auxiliaries like parish groups and parochial schools that file certain tax forms.

Non-exempt parties who do not comply with the mandate face steep fines; the Little Sisters have said the fines would amount to about 40 percent of their annual donations used to run their houses to care for the elderly poor.

Faced with initial backlash, the administration also offered an “accommodation” to objecting non-profits. They are instructed to notify their insurer or the government of their opposition to providing contraception coverage. The insurer must then provide the necessary coverage independently.

Many non-profits, including the Little Sisters of the Poor, have argued that this still requires complicity in morally-objectionable actions to provide access to contraceptives and abortion-inducing drugs. Some critics have charged that the cost of the drugs would still be passed on to the objecting non-profits through the cost of their health plans.

The Little Sisters lost their case against the mandate at the Tenth Circuit Court of Appeals in July, as the ruling stated that the administration’s accommodation for non-profits did not “substantially burden” their religious beliefs. The sisters applied for and received an injunction against the mandate and its fines from the Supreme Court, and the Court agreed in November to hear the case.

Constitutional law scholars, theologians, religious leaders, and more than 200 members of Congress filed amicus briefs Monday supporting the sisters before the Supreme Court.

In one brief, 50 theologians and ethicists argued that the accommodation still requires groups like the Little Sisters to both formally and materially cooperate with evil. The Tenth Circuit Court of Appeals had denied the sisters’ claim that the accommodation substantially burdened their religious beliefs.

“Many theologians in the Catholic tradition have concluded that one who knowingly obeys a command to act in furtherance of a wrongful objective typically shares thereby in the intention to achieve the wrongful objective, even if the cooperation is performed reluctantly or under duress,” the brief stated.

“On this view,” compliance with the mandate would be “formal cooperation” with evil, they continued.

Through any of the avenues offered in the government’s accommodation for objecting non-profits — sending the “Form 700” to their insurer which would then provide the contraceptive coverage; notifying the government of their objection so that the government would then direct the insurer to provide the coverage; or keeping a contract with their insurer that the government has ordered to provide the contraceptive coverage — these groups would still be furthering the “government’s intention” of providing access to contraception, the brief argued.

“Petitioners may reasonably infer from the Catholic tradition that submitting information whose sole purpose and function is to facilitate the Government’s execution of a forbidden action would necessarily involve sharing in the intention to perform the action. Again, this would constitute formal cooperation with wrongdoing.”

In another brief, filed by the grassroots organization Women Speak for Themselves, George Mason law professor Helen Alvare argued that the mandate does not meet the “compelling interest” test of the Religious Freedom Restoration Act.

Under that law, when the state substantially burdens a person’s exercise of religion, it must prove that the burden fulfills a compelling government interest and is the least-restrictive means of doing so. However, Alvare rejected the government’s claim that it was furthering a “compelling interest” by requiring religious employers to pay for their employees’ contraception.

“The government is asking this Court to accept its intuition that free contraception and ECs [emergency contraceptives] will lower rates of unintended pregnancy and abortion and thereby improve women’s health. On its face, this seems plausible, even likely, but relevant data and the history of contraception’s dynamic effects in the United States do not bear it out,” she said.