In a recent e-mail, Notre Dame Law Professor and Mirror of Justice blogger Rick Garnett made some points about the university’s recent lawsuit against the H.H.S. mandate. In a post yesterday I referred to Grant Gallicho’s analysis at DotCommonweal about the scope of the religious exemption already offered. Grant believes it is more generous than most of the administration’s critics realize.
Garnett is not as confident that Catholic elementary schools and social welfare agencies are, as Grant argues, shoe-ins for a religious exemption from the mandate and argues that it is not clear that the relevant language would treat even a diocese as a religious employer.
He writes: “I think it is entirely reasonable for these plaintiffs to read the relevant text and conclude that they cannot be confident that they would be covered," points spelled out in greater detail in the briefs filed on May 21.
In any event, Garnett argues that the exemption remains “simply too narrow” and despite non-binding assurances in H.H.S. documents, he worries that its language could spread throughout the federal “regulatory regime in a way damaging to religious freedom." He adds, “The way regulations are written involves a whole lot of cribbing and borrowing, and there’s no reason to have any confidence that a future regulator, in a different context, won’t decide that the narrow exception would work well in her bailiwick, too."