The Church has a considerable uphill climb with its lawsuit, as there are no First Amendment violations, either with regard to the Free Exercise Clause or the doctrine of free association.
The policy in question clearly passes the religious test established in
Lemon v. Kurtzman (1971):
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); [p613] finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674.
Lemon v. Kurtzman
First, the statute must have a secular legislative purposeÂ…
This is obviously the case, since the measure is designed only to ensure consistent availability of healthcare coverage for all employees.
Â…second, its principal or primary effect must be one that neither advances nor inhibits religion,
This prong of the test is also not at issue; no Catholic is forced to use a contraceptive therapy or have an abortion, no Catholic is denied any ritual of the Church, neither doctrine nor dogma is being preempted.
The argument by some that the policy ‘forces’ the Church to provide treatments in ‘violation’ of its religious tenets is ignorant idiocy: the relationship between the Church and its ‘affiliated employers’ is tenuous at best. Indeed, the health insurance coverage provided is a contract between the insurer and insured only, the employer is not involved in the insurance contract in any way, even less so for the Church.
…finally, the statute must not foster "an excessive government entanglement with religion.”
Not only is there not an excessive government entanglement, thereÂ’s no connection whatsoever. The premium payments made by the affiliated employer constitute compensation, the same as a wage or leave, to be used as the employee sees fit. That all or part of the premium payment is made directly to the insurer is immaterial, the affiliated employer can no more dictate to the employee how to use his healthcare compensation than how he may spend his wage or where he may or may not go on vacation.
In order to have any success with its suit, the Church would have to demonstrate a direct link between the policy and how its provisions in any way interfere with religious practice. Since no interference exists, the link can not be established.
In addition, many contraceptives are used as a therapy having nothing to do with birth control, and that an employee
might use her health insurance for birth control is insufficient grounds to invalidate the policy.
Moreover, the Church has a serious inconsistency problem with regard to its argument. Many Catholic affiliated employers currently provide employees birth control coverage in their insurance plans: the University of Scranton, DePaul University in Chicago, and Christian Brothers University in Memphis are but a few examples of Catholic affiliated employers who provide such coverage.*
This lawsuit isnÂ’t about the law, the Constitution, or religious freedom, itÂ’s about partisan politics, itÂ’s a contrived non-issue by social conservatives.
*
Many Catholic Universities, Hospitals Already Cover Contraception In Their Health Insurance Plans | ThinkProgress