August 23, 2019

Tenth Circuit: En Banc Rehearing Denied Sua Sponte in Little Sisters Case

The Tenth Circuit Court of Appeals issued a denial of en banc rehearing sua sponte on September 3, 2015, in the three combined cases of Little Sisters of the Poor v. BurwellSouthern Nazarene University v. Burwell, and Reaching Souls International v. Burwell. Although plaintiffs filed petitions for certiorari directly to the Supreme Court, the Tenth Circuit sua sponte considered en banc rehearing of the case. A majority of the active judges on the court voted to deny. Judges Kelly, Hartz, Tymkovich, Holmes, and Gorsuch voted to grant rehearing.

Judge Hartz wrote a separate dissent from the denial of en banc rehearing, which was joined by Judges Kelly, Tymkovich, Gorsuch, and Holmes. In his dissent, Judge Hartz opined that the opinion in Little Sisters of the Poor v. Burwell gravely misconstrued the issues. Judge Hartz found that the imposition of hefty fines for failure to comply with the opt-out provision of the Affordable Care Act’s birth control mandate constituted a substantial burden, and that the majority mistakenly characterized the plaintiffs’ sincerely held religious belief as being in opposition to the provision of birth control, rather than that execution of the opt-out documents is itself sinful. The majority’s reasoning held that there was no religious objection to the execution of the forms. Judge Hartz believed this was in error. He believed that the majority’s position was a dangerous approach to religious liberty, and opined that the majority opinion “will not long survive” because it is “contrary to all precedent concerning the free exercise of religion.” Judge Hartz would have set aside the panel decision and returned the case to determine whether the certification requirement is the least restrictive means of furthering a compelling government interest.

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