There's a paucity of legal commentary in the blogosphere so far about the Catholic bishops' coordinated legal attack on the federal contraception coverage requirement, but today's NYT op-ed on the issue, "Do the Bishops Have a Case Against Obama?," is notable for who wrote it -- a Notre Dame professor of philosophy, not a lawyer. His layman's answer is maybe, but they haven't made it:
There may be a cogent case against the government’s position. But there is no slam-dunk appeal to outrageous violations of the First Amendment, such as genuine instances of persecution or a war on religion would provide. Rather, there are arguments based on complex (and contestable) legal considerations — for example, interpretations of the 1993 Religious Freedom Restoration Act — turning on the question of what sort of burden of proof the government has to show that its requirement is necessary to achieve its legitimate goal. The bishops may have a viable legal case against the Obama administration. But they have no case for a call to the barricades.
For views from the legal academy, see:
- WSJ: Mary Ann Glendon: Why the Bishops Are Suing the U.S. Government
- Dorf on Law: The Catholic Dioceses' Lawsuits Against HHS: A Guide to the Perplexed
