- The Washington Times - Monday, February 18, 2013

Religious employers battling the Obama administration in court over a mandate in the president’s health care law requiring them to offer contraceptive and birth control insurance to their employees could summarize their arguments neatly by pointing to the founder of Domino's Pizza.

Thomas Monaghan, who sold off the ubiquitous franchise in 1998 and devoted his time and vast wealth to Catholic causes and institutions, is uniquely tied to two classes of employers under the mandate. The Catholic nonprofit school he founded, Ave Maria University in southwestern Florida, has been granted flexibility from the Obama administration in contraceptive coverage, but the large corporate office park that the onetime pizza magnate owns in Michigan, known as Domino's Farms, has not.

“They’re really making the same claims, but they’re divided up into different tiers, so to speak,” said S. Kyle Duncan, general counsel at the Becket Fund for Religious Liberty.

When the controversy over contraception broke, the Obama administration sorted those objecting to the mandate into three categories, ranging from inherently religious entities such as churches to outwardly secular establishments. Houses of worship are exempt from the mandate, and President Obama tried to accommodate religious-affiliated universities, charities and hospitals by placing a firewall between the nonprofits’ health care plans and contraception policies administered and paid for by insurers. He has not made a similar offer to for-profit operations.

Ave Maria University and Domino's Farms are among dozens of entities in the latter categories — religious nonprofits and corporations — that have sued the Obama administration in federal courts. Mr. Monaghan has a foot in each camp, offering a direct line to the plaintiffs’ line of thinking — why, they ask, is one objector’s claims to religious freedom more valid than another’s?

“To my knowledge, he’s the only person involved in both sides of the cases,” said Mr. Duncan, who is handling the Ave Maria case.

Defending the mandate

In defense of the mandate, the Obama administration said contraceptive services can have “tremendous health benefits” and save costs through fewer unexpected pregnancies, with 99 percent of American women relying on artificial birth control methods at some point in their lives. Yet more than half of all women ages 18 to 34 have trouble meeting the cost, the department said.

Chris Pumpelly, a spokesman for the progressive Catholics United, said the administration has acted appropriately by addressing the objectors’ concerns in a three-pronged fashion. Houses of worship were exempted from Day One, and he said religious nonprofits received a good deal in Mr. Obama’s recent compromise.

“To insist the employees of a secular, for-profit entity abide by the moral dictates of their employer is not appropriate,” he said of corporations in the third category. “The fact of the matter is, the Affordable Care Act helps ensure employees are treated fairly and have equitable access to the care they deserve, regardless of the opinions of their employer.”

But in their lawsuits, dozens of religious nonprofits and private businesses argue that offering coverage of contraceptives, sterilization or abortion-inducing “morning after” drugs is anathema to the Catholic Church and other faiths. The plaintiffs are forced to choose between health care coverage and their moral principles, their attorneys said, violating basic American precepts of religious freedom.

Adding complexity to the issue, America’s Catholic bishops and many religious nonprofits have rejected the compromise Mr. Obama proposed Feb. 1, citing the need for a solution that provides exemptions for religious employers besides houses of worship.

Eleven out of 14 corporations that have filed suit have obtained temporary relief from the mandate in federal courts, and preliminary rulings from several circuit courts have come down on both sides of the issue, according to the Becket Fund.

“I think it has to go to the Supreme Court,” said Erin Mersino, a lawyer at the Thomas More Law Center and lead counsel in the Domino's office-park case.

Monaghan’s dilemma

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