Commonwealth of Pa. v. President United States — civil — reversal — Hardiman

The Third Circuit today reversed a district court’s order denying intervention by a religious employer into a suit brought by Pennsylvania against the Trump administration challenging its executive orders exempting both religious non-profits and for-profit employers morally opposed to contraception from relevant parts of the Affordable Care Act.

Reversing under abuse-of-discretion standard, the Third Circuit held that the employer, a Pittsburgh retirement home operated by a Catholic non-profit corporation, had a sufficient interest in the case and that, although they sought the same relief as the President of the United States, the Department of Health and Human Services, the Treasury Department, and the Labor Department, their interests were not adequately protected by the existing parties.

In the key passage, the court reasoned:

First, the Little Sisters’ situation is similar to Trbovich, where a statute obligated the Secretary of Labor to uphold the “related[] but not identical” interests in enforcing the rights of union members against their union as well as the “public interest” in assuring free and democratic
union elections. 404 U.S. at 538–39. Zubik likewise tasked the government with serving two related interests that are not identical: accommodating the free exercise rights of religious
objectors while protecting the broader public interest in access to contraceptive methods and services. And like Benjamin, the Zubik compromise must balance the rights of “two groups with quite divergent desires and interests.” 701 F.3d at 958. Finally, as in Kleissler, the government must defend “numerous complex and conflicting interests.” 157 F.3d at 973. The religious exemption IFR applies not only to religious nonprofit corporations like the Little Sisters, but also to closely held and publicly traded for-profit corporations. And the moral exemption IFR protects parties for reasons unrelated to religion. The religious and moral interests of these entities are numerous and varied. Accordingly, there is no guarantee that the government will sufficiently attend to the Little Sisters’ specific interests as it attempts to uphold both IFRs in their entirety. See Kleissler, 157 F.3d at 967 (concluding that the proposed intervenors had carried their burden by showing “a reasonable doubt whether the government agency would adequately represent [their] concerns”).

Since the government’s interest will always be broader than a would-be-intervenor’s, this reasoning seems in tension with the circuit’s precedent presuming that the government is an adequate representative and that a district court’s denial of intervention is reviewed for abuse of discretion only. A petition for rehearing en banc seems inevitable.

Joining Hardiman were Bibas (in what I believe is his first vote in a precedential appeal) and Roth. Arguing counsel were Michael Fischer for Pennsylvania and Lori Windham of the Becket Fund for Religious Liberty for the employer.