Defending Religious Nonprofits against the ACA Ave Maria Amicus Brief to the U.S. Supreme Court

Defending Religious Nonprofits against the ACA Ave Maria Amicus Brief to the U.S. Supreme Court

The Politics Department hosted Scott Gaylord, Esq. (Professor of Law, Elon Law School), on Wednesday, February 3rd. Gaylord assisted Ave Maria University in preparing its amicus brief in the case of Zubik et al. v. Burwell, which will be heard by the Supreme Court in the spring.

In his address to AMU students, Prof. Gaylord explained the details of the Patient Protection and Affordable Care Act (ACA) and the Health and Human Services (HHS) Mandate, and how these two pieces of legislation pose a threat to religious freedom.

Gaylord also went over some of the protections we have in place for religious freedom, constitutionally (under the free exercise clause) and statutorily (under the Religious Freedom Restoration Act of 1993 and the Religious Land Use and Institutionalized Persons Act of 2000). What is surprising to many, he remarked, is how, in this instance, most of our protection comes from statutes, not from the constitution. “States can’t provide less protection,” Gaylord said, “but they can always provide more.”

Gaylord went on to outline some landmark cases related to the issue of religious liberty—Thomas v. Review Board of the Indiana Employment Security Division(1981), Employment Division, Department of Human Resources of Oregon v. Smith (1990), Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993), Burwell v. Hobby Lobby (2014), and Holt v. Hobbs (2015)—in order to illustrate how these issues have been decided in court in the past and how best to approach the case of the Little Sisters of the Poor in Zubik v. Burwell.

The way forward is not clear-cut; there are many different paths to take in arguing on behalf of the Little Sisters. “As lawyers,” Gaylord said, “we have to ask ourselves: ‘What’s the best way to make real change?’” Closing his remarks, he said: “By mid to late June we should have a decision, God wiling it will be one which protects religious exercise.”

Constitutional Law scholar Scott Gaylord’s most recent scholarship examines the scope of First Amendment speech and religion under the Roberts Court. Before joining Elon, Professor Gaylord practiced with the Charlotte, NC firm of Robinson, Bradshaw & Hinson. He served as a law clerk to Judge Edith Jones on the Fifth Circuit Court of Appeals in Houston from 1999 to 2000.