Indiana: Standing Tall for Not *Too* Much Religious Liberty Just Yet

Indiana: Standing Tall for Not *Too* Much Religious Liberty Just Yet January 11, 2013

A lawyer friend writes from the Hoosier State:

Here is the order dismissing Notre Dame’s lawsuit against the HHS mandate. The judge finds that the case isn’t “ripe” because Notre Dame doesn’t have to comply with the mandate until a year from now. Federal jurisprudence is littered with exceptions to the “ripeness” doctrine for cases where harm is prospective and certain, particularly in cases involving questions of great public importance. The federal judiciary routinely uses this stuff to allow people to sue over spotted owls, federal disability laws, and dozens of other subjects close to the hearts of the elite (disability laws and spotted owls are about money as much as they are about spotted owls and the disabled). Of course the reason the one year hiatus was put into the mandate to begin with was to head off such lawsuits until the federal healthcare takeover was well underway, at which time Notre Dame and other opponents of the mandate can be accused of trying to “deprive everyone of health care” but upsetting the house of cards constituting the takeover. Why, at that point, if we let ND out of the mandate for religious reasons, wel’ll have to let everyone out of mandates for all sorts of religious reasons. But this is about freedom! We can’t let people do whatever they want in the name of freedom, can we? It would destroy our democratic way of life!

I wonder how the Mandate is faring in legal challenges elsewhere, and how long implementation can be held up in court?

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  • BobRN

    The above article will answer your question, at least partially. Most of the challenges to the HHS mandate have been won by the challenger, but it’s a mixed bag. I think it will remain so until the SCOTUS takes it up.

  • Chris

    Mark, as the above commenter suggests, the answer is win some, lose some.

    If you’re interested in exploring further, a great resource is The site is run by a law professor and attempts a neutral analysis of all court decisions/political issues that could impact religious liberty; there should be some tags you can click on to isolate just mandate coverage. That said, playing around on his site gives a much broader perspective on the types of religious liberty issues facing us today.

  • NDGradStudent

    A great victory for the faculty at Notre Dame that screeched in fury when the suit was filed – I can only be grateful the campus newspaper is far too occupied with football to cover this story.

    The quote mentioned above in the Spectator link nails it – the Constitution does not contain “trust us, we’re fixing it” at any point. Still and all, here’s what will happen: now that Notre Dame et. al. have been told that they can’t really complain until the law goes into effect, they’ll have to sit on their hands until August 1. Then the penalty fines will then start piling up as the judicial system is backlogged even more than usual with suits against the mandate.

    What a joke. And, by the way, if you complain too loudly on campus, you’re automatically labeled a fundamentalist, misogynist, Pharisee, [insert insult here] by quite a few. Just as TTUTBC trots out Hitler and pals every time BHO so much as breaks wind, so do the PC crowd at ND start throwing down Biblical accusations of hatred and anti-Christian meanness should one dare to challenge the federal government’s ruling by fiat of what is and is not allowed practiced in faith.

    • The key moment is to look them in the eye and as they draw breath to bully you firmly say “shame on you” and back it up with the mirror image of the emotional appeal they were about to make. The military calls this a spoiling attack and it reliably leaves PC people quite confused at being on the receiving end of a moral high ground argument.

    • yan

      ‘The quote mentioned above in the Spectator link nails it – the Constitution does not contain “trust us, we’re fixing it” at any point.’

      Actually, it does. Article III refers to ‘cases’ and ‘controversies.’ As Justia explains:

      Judicial power is “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” The meaning attached to the terms “cases” and “controversies” determines therefore the extent of the judicial power as well as the capacity of the federal courts to receive jurisdiction. According to Chief Justice Marshall, judicial power is capable of acting only when the subject is submitted in a case and a case arises only when a party asserts his rights “in a form prescribed by law.” “By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication.”

  • kenneth

    This court makes a persuasive argument that the case is premature. A year is a long time in politics, and whether one trust the administration’s intent or not, it has made concrete promises of revision to at least one other court, and is under the gun to keep it apprised of the changes. If I’m not mistaken, that’s the Wheaton College case.

    Government lawyers committed to proposing a new rule by the end of the first quarter and finalizing it by August. They also apparently promised that the current rule would not be enforced against groups like Notre Dame that have safe harbor standing. Those things cast some doubt on Notre Dame’s sense of urgency and imminent harm. The court would be wasting its time and resources adjudicating a rule that may not be around by the time it rules, or even hears arguments. No doubt, Catholic organizations would prefer a ruling on principle which says for all time that the government cannot even joke about mandating them, but courts don’t rule on abstract principles. They work with facts, and those facts are very much in flux right now.

    Notre Dame and other plaintiffs should take heart from one thing in this ruling, the reference to the 2012 EPA case. In that case, the courts clamped down on the practice of endless administrative rulemaking as a stall tactic. That’s a VERY important development for plaintiffs like those fighting HHS. I was involved with the struggle to force the VA to allow pagan symbols on veteran’s tombstones, and that was the exact mechanism used to keep us dancing for 10 years. The government knew they had no legal basis to deny us, so they played the game that used to be called (politely) “Keep that boy running.” As soon as the “final rule” got down to the wire to allow pentacles on markers, they would scrap the whole process and start from square one again with umpteen months more of hearings and revisions etc.

    • yan

      Great post. How can I apply to work for you?

  • Well, I wouldn’t expect much out of Indiana…a state where citizens do not have the right to resist law enforcement who unlawfully enter the homes of citizens:

    • kenneth

      I’m not sure what that decision has to do with anything in the HHS issue. Indiana is by far not the only jurisdiction to judge the HHS matter “unripe.” The issue of right to resist unlawful arrest is a complex one. Most modern jurisdictions have moved away from the ancient common law doctrine that allowed resistance. They have done so for some sound reasons, one being that policing would become a suicide mission if arrestees were allowed to fight them with deadly force anytime they felt the were in the right. Courts are the only ones with the ultimate authority to determine the legality of an arrest, and defendants have much better access to legal redress after an arrest than they did in 17th Century England. The stakes were different then because many arrests were made by private individuals claiming dubious authority, and those arrested faced years in a filthy dungeon before their cases were adjudicated. Most states and courts these days reason that it’s better to have everyone come back alive and in one piece from an arrest and then sort the matter out in court.

    • First, that was state court, this is federal so it’s a completely different system. Second, Indiana has restored that right for eminently good reasons. The state AG actually dissented on his winning the case that way, a development which is quite rare.

  • Josh

    What does Indiana have to do with this? This is a federal court decision that happened to take place in Indiana. “US District Court” means federal, not state. Timothy McVeigh was executed at a federal prison in Indiana. Did Indiana execute him?