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CFC in the News - 2016

Erie's Bishop Persico set for Supreme Court case

Ed Palattella

23 March 2016

Nearly four years ago, then-Erie Catholic Bishop Donald W. Trautman declared that the federal government had launched "an attack" on religious freedom.

Trautman's successor, Bishop Lawrence Persico, has taken the legal fight as far as it can go: to the U.S. Supreme Court.

Persico will be seated in the court's gallery on Wednesday, when the eight justices hear arguments over the constitutionality of the contraception mandate in the Affordable Care Act.

The 187,500-member Catholic Diocese of Erie is one of 12 religious organizations nationwide that sued over the mandate in May 2012, when Trautman said it represented the federal Department of Health and Human Services' "unprecedented attack on the citizens' cherished freedom to practice religion without government interference."

Since then, seven of eight federal appeals courts, including the 3rd Circuit Court of Appeals, which includes Pennsylvania, have ruled in favor of the government.

The lone decision for religious organizations, from the 8th Circuit, based in St. Louis, in September, created the legal division that sent the appeal to the Supreme Court for Wednesday's argument.

The Catholic Diocese of Erie's suit has been consolidated with six other suits from other religious groups, including the Catholic Diocese of Pittsburgh.

They are all part of the case docketed as Zubik v. Burwell, after the Catholic bishop of Pittsburgh, David Zubik, and Sylvia Burwell, secretary of the U.S. Department of Health and Human Services. Other plaintiffs include the Little Sisters of the Poor, a group of nuns from Colorado.

Persico has taken on the role as the lead plaintiff in the Catholic Diocese of Erie's suit after Trautman's retirement in the fall of 2012.

Persico is arguing, as Trautman did, that the contraception mandate violates Catholic organizations' rights to religious freedom under the First Amendment and the federal Religious Freedom Restoration Act of 1993.

The act holds that the government cannot "substantially burden" someone's free exercise of religion unless the burden is "the least restrictive means" of furthering a compelling government interest.

Whether the contraception mandate meets those standards is the primary issue before the Supreme Court, which has been down to eight justices since Justice Antonin Scalia died Feb. 13.

For Persico, the challenge, at its most basic, is whether the Catholic Diocese of Erie and other religious groups are free to operate in accordance with their faith, which, for Catholics, includes opposition to birth control.

"We are not trying to force our beliefs on the nation," Persico said in an interview. "Within our organizations, I think we have the right to our beliefs. We should be able to function in the way we believe."

The contraception mandate allows for employees of faith-based religious nonprofits, such as Catholic hospitals, schools and social-service organizations, to receive birth-control coverage at no extra cost from a third party under the Affordable Care Act.

Churches and dioceses are exempt from the mandate. Despite the third-party accommodation, Persico said all religious organizations, not just churches, should be exempt.

Religious organizations trigger the third-party accommodation by signing a document that prevents them from providing contraception coverage. But the Catholic Diocese of Erie, its lawyers have argued, believes "that signing such a document facilitates moral evil and makes them complicit in sin, regardless of whether they are required to pay for the objectionable coverage."

Persico also said the government is violating the rights of Catholic institutions by dividing them, under the Affordable Care Act, into two groups: churches and dioceses, and other Catholic organizations. The government, he said, should not be allowed to "make the distinction between us."

The government has argued that the IRS, in long-standing policy, already differentiates between houses of worship and religious employers. And the government has argued, according to court documents, that religious organizations are less likely than houses of worship to employ people of the same faith.

The Jones Day law firm, which has an office in Pittsburgh, has been representing the Catholic Diocese of Erie without charge, and the lawyer who will represent the Erie and Pittsburgh dioceses on Wednesday is Noel J. Francisco, of Jones Day's office in Washington, D.C. Representing the government will be Solicitor General Donald B. Verrilli Jr., the Department of Justice's chief litigator.

The argument starts at 10:30 a.m.

The government is arguing the Department of Health and Human Services, which administers the Affordable Care Act, crafted the contraception mandate so it complies with the First Amendment and the Religious Freedom Restoration Act.

The government is arguing the mandate places no undue burden on religious organizations while furthering a compelling government interest -- protecting the health of female employees by, among other things, reducing unintended pregnancies and the health complications that can accompany them.

Not all Catholic organizations are siding with the Catholic dioceses of Pittsburgh and Erie. A group called Catholics for Choice has filed a friend-of-the-court brief in support of the government.

Catholics for Choice, according to a statement, is arguing that the elimination of the mandate would harm "the reproductive rights and religious freedom of the individuals at religious institutions: workers, employees and their dependents."

Persico said employees denied contraception coverage still would have options.

"They can make choices," he said, "whether they want to work for the church."

This piece was originally published by Erie Times-News.