USCCB’s five briefs to the Supreme Court
by Christopher Dodson
Executive Director, North Dakota Catholic Conference
May 2016

Many Catholics in the country have probably never heard of the Office of General Counsel (OGC) at the United States Conference of Catholic Bishops. It is USCCB’s legal arm. It represents the office, advises bishops, and analyzes federal legislation and rules.

It also submits amicus curiae or “friends of the court” briefs on important issues before the Supreme Court. These briefs allow interested parties other than actual litigants to provide additional information to the court. They take a considerable amount of time to prepare and the OGC only submits them when the church’s interests are clearly implicated and the bishops’ conference has something pertinent to offer.

This last year the office submitted five such briefs to the Supreme Court. The number of briefs and their subjects demonstrate the important role Supreme Court decisions play in our lives as Catholics and the scope of the church’s concerns when it comes to policy and law.

Whole Women’s Health v. Hellerstedt. This case involves a challenge to a set of laws in Texas regulating abortion providers. One of the laws, similar to North Dakota’s, requires that abortionists have admitting privileges at a local hospital. The other law requires that certain abortion centers meet the health and safety requirements of ambulatory surgical centers. The brief argues that (1) four decades of court decisions support the right of states to pass such laws to protect the health of women and (2) there is ample evidence that such laws protect women.

United States v. Texas. Following its long-standing support for immigration policies that foster stable families, the bishops joined other faith-based organizations in a brief supporting federal policies to stay deportation proceedings for four to five million individuals residing in the U.S. who pose no threat to national security or public safety and who have longstanding and close family ties to the U.S. Without expressing an opinion on whether the Administration should have issued the guidelines, the brief argues that the guidelines were legally within the Administration’s discretion in light of its benefits to the interest of stable families and to prevent immediate and long lasting damage to affected children.

Trinity Lutheran Church v. Missouri Department of Natural Resources. The state of Missouri has a program to increase safety at playgrounds by providing grants to resurface playgrounds with rubber from recycled tires. When Trinity Lutheran Church applied for the grant it was denied solely because the playground was on church grounds. Safety for some kids is apparently okay, but not if they play on church grounds.

The amicus brief points out: “Missouri’s overt discrimination against Trinity Lutheran purely because of its religious status is repugnant to the First Amendment. Like discrimination based on race or national origin, discrimination based on religion is inherently suspect and can be upheld only if necessary to serve a compelling governmental interest. Missouri lacks any legitimate, let alone compelling, interest in excluding Trinity Lutheran from the Scrap Tire Program.”

By the way, don’t think that such hostility toward religion is extremely rare. A few years ago, the state of North Dakota enacted legislation to provide grants for automated external defibrillators (AED) for schools. There were some who actually argued that church-affiliated schools should be prohibited from receiving the AEDs.

Storman’s v. Washington Department of Health. The state of Washington enacted regulations that require pharmacies to stock and dispense abortifacient drugs. However, the final rules exempted pharmacies from the rule for secular reasons, but explicitly rejected any exemptions for religious reasons. In fact, ten times more pharmacies sought exemptions for secular reasons than for religious reasons. The brief argues that the rules amount to “religious gerrymandering” and the rules have the purpose of forcing Catholic hospitals to close.

Finally, OGC filed an amicus brief in Zubrik v. Burwell, the challenge to the HHS mandate by, among others, the Little Sisters of the Poor. This case involves the Religious Freedom Restoration Act which states that a federal law cannot substantially burden the exercise of religion unless the government has a compelling interest and does so with the least restrictive means. The brief focuses mostly on the second part of that law.

“If the petitioners abide by their religious beliefs, they face the loss of the ability to sponsor health coverage for their employees and millions of dollars in fines, threatening financial ruin. No one benefits from such an outcome—not the organizations, their donors, their clients, or their employees. Because its chosen means causes greater societal harm, including to religious liberty, than the putative good that its action would achieve, the government’s action is not the least restrictive means of furthering any compelling government interest.”

Most of these cases are expected to be decided in June.