- 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

Although Mr. Monaghan could be the best-known figure in the dispute — he used to own the Detroit Tigers — he is “actually pretty low-profile” and not speaking directly to the media about the cases, Ms. Mersino said.

At Ave Maria, Mr. Monaghan sits on the board of trustees and may assist fundraising, but is not involved in the day-to-day operations of the school, said university President H. James Towey.

However, Mr. Monaghan offered a founding vision for the institution and donated $250 million to establish its campus about 30 miles from Naples, Fla., according to the university’s website.

Like many other institutions, the university is pressing forward with its legal claims after rejecting the Obama administration’s solution to the contraception question.

“The fact remains, they are trying to make us complicit,” Mr. Towey said.

On the corporate side, Mr. Monaghan is the owner and sole shareholder of Domino’s Farms, a 937,203-square foot office park in suburban Ann Arbor, Mich., that includes a Catholic bookstore and chapel that holds Mass four times per day, Ms. Mersino said. The corporation does not offer contraceptive coverage to its 45 full-time and 44 part-time employees, nor does it plan to, its lawsuit says.

According to the lawsuit, the Obama administration, “in an unprecedented despoiling of religious rights, forces religious employers and individuals, who believe that funding and providing for contraception, sterilization, abortion, and abortifacients is wrong, to participate in acts that violate their beliefs and their conscience — and are forced out of the health insurance market in its entirety in order to comply with their religious beliefs.”

Michigan Attorney General Bill Schuette has filed legal briefs in support of Mr. Monaghan’s company and two other plaintiffs from his state.

“Religious liberty,” he wrote, “cannot be confined to the sanctuary and sacristy.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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