After a federal appeals court ruled this week that four Christian colleges in Oklahoma and a group of nuns will have to abide by an Obamacare contraception mandate that they say violate their institutions’ biblical beliefs, former U.S. Solicitor General Ken Starr explained Thursday that the court loss can be blamed on the organization’s lawyers not building strong enough cases.
The U.S. 10th Circuit Court of Appeals on Tuesday overturned a U.S. District Court ruling that temporarily exempted Southern Nazarene University, Oklahoma Baptist University, Oklahoma Wesleyan University and Mid-America Christian University from having to comply with an Affordable Care Act mandate requiring the Christian schools’ health insurance providers to offer free birth control drugs that could induce an abortion to its employees.
The court’s decision came in one mass-encompassing opinion that also affected the Little Sisters of the Poor, a group of Colorado nuns who serve the elderly, and a handful of other religious organizations.
Although the use of abortion-inducing drugs is an affront to the schools’ biblical convictions, the court ruled that it is not the institution that is providing the contraceptives but rather the health providers.
As the judicial cases on the Obamacare contraception mandate have became another front line in the battle over religious freedom in America, Starr, the president of Baylor University and former U.S. Solicitor General under George H.W. Bush who has argued dozens of cases before the Supreme Court, told attendees of a Georgetown University religious freedom summit that lawyers representing the organizations relied too much on the philosophical argument of freedom of religion.
“The four [types of contraception] at issue in the Hobby Lobby case were deemed by the Supreme Court of the United States as satisfying the compelling interest but that the government had failed to use the least restrictive means to accomplish that,” Starr stated. “But the broader point is that the scrutiny test does not mean that the religious community will always win.”
“I mean no disrespect to any lawyers litigating any of these cases but you got to build your record. You can’t just go in and say ‘I’ve got religious liberty and so please judge give me the judgement,'” Starr continued. “You have to build your case and some of the principle losses in the courts to religious liberty have come because lawyers of good faith had not built an overwhelming case.”