Another Mandate Defeat Teed up for the Supreme Court

Another defeat for the government. The Becket Fund is reporting that the Eighth Circuit, in two decisions released last week, affirmed a lower court’s grant of a preliminary injunction in favor of Dordt College and Cornerstone University, both religious nonprofits, among other entities, against enforcement of the Affordable Care Act’s contraceptive mandate, as well as the so-called “accommodation,” which permits religious entities not to comply with the direct provision of contraceptive coverage by signing a certification (the “Form 700”) that is then sent to a third-party administrator. That administrator then notifies the objecting party’s insurer, who then is supposed to arrange for coverage. This accommodation has its own problems, most clearly that many religious organizations do not feel comfortable appointing a third-party to do something which they themselves find objectionable.

The decision found that “by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and Cornerstone’s exercise of religion.” Because of that substantial burden, the government was required to show that the ACA mandate and accommodation served compelling government interests and did so through means least restrictive of the constitutional protection of free exercise. Relying on a similar, recent case, the appellate panel determined that the government had not used the least restrictive means, but did not rule on whether the government was furthering a compelling interest.

Significantly, the Court did not question Dordt and Cornerstone’s “sincere religious beliefs” that opposed them to the mandate and accommodation. This is in contrast to the case we looked at last week, where the dissenters argued that was precisely what the panel did in rejecting similar claims.

A number of religious non-profit petitions are now waiting Supreme Court review, though it is unclear whether the differing Circuit opinions are going to move the Supreme Court to take a case so soon after Hobby Lobby. However, the fault lines of the decisions are clear. It seems difficult to believe that the government would prevail on whether the ACA mandate and accommodation is the least restrictive means of achieving its interests, whatever the Court’s view of what those interests are. It is worth noting that those interests are not without challenge, including by federal appellate courts, as in a 2013 opinion by Judge Janice Brown, although they were assumed for the purposes of argument only in Hobby Lobby. Yet the stubborn, unknown fact on which the decision may hinge is not strictly a legal one: can the Justices understand that the accommodation itself can burden religious freedom, even if the government does not think it does? That in turn will require them to decide whether the challengers’ beliefs are sincere and given their place in the “scribal” hierarchy, that conclusion may be too much to expect.

Frary, “Russia and the Making of Modern Greek Identity, 1821-1844”

In August, the Oxford University Press released “Russia and the Making of Modern Greek Identity, 1821-1844,” by Lucien J. Frary (Rider University).   The publisher’s description follows:

The birth of the Greek nation in 1830 was a pivotal event in modern European history and in the history of nation-building in general. As the first internationally recognized state to appear on the map of Europe since the French Revolution, independent Greece provided a model for other national movements to emulate. Throughout the process of nation formation in Greece, the Russian Empire played a critical part. Drawing upon a mass of previously fallow archival material, most notably from Russian embassies and consulates, this volume explores the role of Russia and the potent interaction of religion and politics in the making of modern Greek identity. It deals particularly with the role of Eastern Orthodoxy in the transformation of the collective identity of the Greeks from the Ottoman Orthodox millet into the new Hellenic-Christian imagined community. Lucien J. Frary provides the first comprehensive examination of Russian reactions to the establishment of the autocephalous Greek Church, the earliest of its kind in the Orthodox Balkans, and elucidates Russia’s anger and disappointment during the Greek Constitutional Revolution of 1843, the leaders of which were Russophiles. Employing Russian newspapers and “thick journals” of the era, Frary probes responses within Russian reading circles to the reforms and revolutions taking place in the Greek kingdom. More broadly, the volume explores the making of Russian foreign policy during the reign of Nicholas I (1825-55) and provides a distinctively transnational perspective on the formation of modern identity.

Thompson, “For God and Globe”

In November, the Cornell University Press will release “For God and Globe: Christian Internationalism in the United States between the Great War and the Cold War,” by Michael G. Thompson (University of Sydney). The publisher’s description follows:

For God and Globe recovers the history of an important yet largely forgotten intellectual movement in interwar America. Michael G. Thompson explores the way radical-left and ecumenical Protestant internationalists articulated new understandings of the ethics of international relations between the 1920s and the 1940s. Missionary leaders such as Sherwood Eddy and journalists such as Kirby Page, as well as realist theologians including Reinhold Niebuhr, developed new kinds of religious enterprises devoted to producing knowledge on international relations for public consumption. For God and Globe centers on the excavation of two such efforts—the leading left-wing Protestant interwar periodical, The World Tomorrow, and the landmark Oxford 1937 ecumenical world conference. Thompson charts the simultaneous peak and decline of the movement in John Foster Dulles’s ambitious efforts to link Christian internationalism to the cause of international organization after World War II.

Concerned with far more than foreign policy, Christian internationalists developed critiques of racism, imperialism, and nationalism in world affairs. They rejected exceptionalist frameworks and eschewed the dominant “Christian nation” imaginary as a lens through which to view U.S. foreign relations. In the intellectual history of religion and American foreign relations, Protestantism most commonly appears as an ideological ancillary to expansionism and nationalism. For God and Globe challenges this account by recovering a movement that held Christian universalism to be a check against nationalism rather than a boon to it.