Bethany Krajelis Nov. 19, 2012, 6:20pm

The U.S. Department of Justice (DOJ) this month asked a judge to deny a request from Highland business owners seeking to prevent the enforcement of the Affordable Care Act (ACA) against those with religious objections to the law’s insurance mandate.

The suit also recently captured the attention of two outside groups, both of which were given permission this month to file amicus curiae briefs.

The American Civil Liberties Union (ACLU) filed a brief last week in support of the government while the Liberty, Life and Law Foundation (LLLF) on Monday submitted a brief that sides with the plaintiffs.

Cyril and Jane Korte, the owners of Korte & Luitjohan Contractors, in October filed a lawsuit against the labor, treasury and health and human services departments, as well as the three agency heads, claiming that the ACA’s “final rule” violates their religious beliefs.

Among other requirements, this rule mandates that employee health benefit plans include coverage for contraceptives; something the Kortes contend goes against their moral and ethical beliefs as devout Catholics.

They claim that the ACA mandate puts them in the position of having to comply with something that violates their religious beliefs or pay fines that “would have a crippling impact on their ability to survive economically.”

In its response to the Kortes’ motion for a preliminary injunction, the DOJ contends that the “plaintiffs’ challenge rests largely on the theory that a for-profit, secular company can claim to exercise a religion and thereby avoid the reach of laws designed to regulate commercial activity.”

To uphold such claims, the DOJ argues, would allow for-profit, secular companies and their owners to “claim countless exemptions from an untold number of general commercial laws designed to improve the health and well-being of individual employees based on an infinite variety of alleged religious beliefs.”

That “would not only be unworkable, it would also cripple the government’s ability to solve national problems through laws of general application,” the government asserts.

The DOJ contends that the Kortes’ claims under the Religious Freedom Restoration Act (RFRA) have no merit because their company is a secular entity.

In addition, the DOJ asserts that the Kortes failed to prove that the challenged regulations would substantially burden them or their company.

And even if they were deemed to be a burden on the Kortes’ religious beliefs, the DOJ claims the regulations would still not violate the RFRA “because they are narrowly tailored to serve two compelling governmental interests.”

Those interests, the DOJ states in its response, are “improving the health of women and children, and equalizing the provision of recommended preventive care for women and men so that women who choose to do so can be a part of the workforce on an equal playing field with men.”

The Kortes, the government contends, also can’t establish that they will be harmed if the court doesn’t grant their motion for an injunction.

Not only did the Kortes wait more than a year after the mandate was issued to file their suit, but the DOJ stresses that the plaintiffs currently provide coverage for contraceptives in their employee health plan.

While the Kortes contend that providing that coverage was an error, the government claims that “error” shows the company didn’t monitor its plans, which “is inconsistent with its claim that providing such coverage would cause irreparable harm.”

The Kortes, however, assert that the government was wrong to claim that their religious rights can’t be burdened because their company is a for-profit entity.

“A for-profit business, such as K&L, has a right to engage in religious exercise free from substantial burdens imposed by the government,” the Kortes claim in their reply to the DOJ’s response.

In support of the government’s position, the ACLU claims that the Kortes are basically arguing for the “right to discriminate against women and deny them benefits because of the company’s owners’ religious beliefs.”

The ACLU asserts in its brief that the Kortes’ religious claims are not new. Employers throughout history, the group’s brief states, have made religious freedom claims to pay men more than women and to discriminate against employees and customers of different faiths and races.

“Fortunately, in each of these cases, courts squarely rejected the claims, recognizing that the right to religious liberty does not encompass the right to discriminate against others,” the ACLU claims. “This Court should come to the same conclusion here.”

The group contends that “religious liberty is not absolute and cannot automatically trump laws that were passed to further a compelling government interest … It does not give businesses or individuals carte blanche to discriminate against others, deny others their rights, ignore important laws, or foist their religious beliefs on their employees.”

The LLLF, however, contends that the ACC mandate not only violates the Kortes’ religious, but their First Amendment rights as well.

This group -- a Virginia-based nonprofit that promotes religious liberty, sanctity of human life and other moral principles – filed an amicus brief in support of the Kortes’ motion for a preliminary injunction.

“This Mandate tramples the conscience of a multitude of business owners and religious organizations by requiring them to finance drugs and services contrary to their most cherished religious beliefs,” the group asserts in its brief. “It is a frontal assault on liberties Americans have treasured for over 200 years.”

The LLLF said the ACLU argument that “failure to comply with the Mandate constitutes discrimination” is “a rabbit trail diverting attention from the heart of this case: liberty of conscience.”

“Refusal to advance a politically charged agenda is not ‘discrimination,’ particularly since no person has a right to free contraception funded by an unwilling private employer,” the group adds in its brief.

Bradley Humphreys, a trial attorney with the DOJ’s civil division in Washington D.C., submitted the response on behalf of the defendants and Edward White with the American Center for Law & Justice in Michigan filed the Kortes’ reply.

North Carolina attorney Deborah Dewart submitted the LLLF’s amicus brief and Chicago attorney Lorie Chaiten filed the ACLU’s brief.

U.S. District Judge Michael Reagan is presiding over the suit. As of late Monday afternoon, Reagan had not yet issued a ruling on the plaintiffs' injunction request.

The citation for the case is 3:12-cv-01072-MJR-PMF.

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