LIBERTY UNIVERSITY, ET AL. V. GEITHNER, SEC. OF TREASURY The petition for rehearing is granted. The order entered June 29, 2012, denying the petition for a writ of certiorari is vacated. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012).
SCOTUS had been holding the Liberty University petition until NFIB v. Sebelius was decided. After the case on June 29, 2012, the Court denied Liberty’s petition for a writ of certiorari. Then, Liberty filed a petition for rehearing in light of NFIB. Today, the Court granted that hearing, and vacated the June 29, 2012 order denying the petition for a writ of cert. So now the case is GVR’d (grant, vacate, remand). In other words, the Court granted Liberty’s petition for cert on appeal from the 4th Circuit, vacated the 4th Circuit’s judgment, and remanded it to the 4th Circuit to reconsider in light of NFIB v. Sebelius.
So what is the 4th Circuit to reconsider? The individual and employer mandate as violations of rights of religious liberty. Lyle notes:
Liberty University has been pursuing a challenge to both mandates, based on claims that they violate rights to religious freedom or to legal equality under the Constitution. The Fourth Circuit had not ruled on either of those claims, because it ruled that Liberty was barred by the Federal Anti-Injunction Act from suing to stop those mandates. That is one of the issues the Circuit Court will have to reconsider when the case is returned there. The Court cleared the way for doing so by vacating and remanding the Circuit Court’s earlier decision.
There are several other challenges to the contraceptive mandate percolating through the lower courts. I don’t think that Liberty will be permitted to amend their complaint to consider these issues.
Update: Philip Klein has more details on the Liberty University suit.
“We’ll probably be back before the Supreme Court in fall of 2013, about a year from now,” Mathew Staver, the lawyer representing Liberty University, predicted in a phone interview with the Washington Examiner. . . .
Contrary to some news reports, Liberty University’s suit does not explicitly challenge the contraception mandate as it focuses on abortion. However, if successful, it would likely affect the contraception coverage requirement as well.
Staver said the Fourth Circuit panel rehearing the suit is likely the same as the one which heard the original suit, which would seem to cut against challengers to the law. That panel was comprised of two Obama-appointed judges and a Clinton-appointed judge.
“No matter which way this panel goes, this is a case that has had from the beginning Supreme Court written on it,” Staver insisted. “I think everybody realizes that the Court of Appeals is another stop in the way back to the U.S. Supreme Court.”
If the court were to strike down the employer mandate, Staver argued that the entire law should be struck down as well.
“If they struck the employer mandate, that essentially guts the law, because it cripples the law so much that it cannot continue to operate,” he said. “If we win on (free exercise or religion), that may not gut the law, but it puts a big hole in the bottom of the boat that ultimately does, I think, significant damage to the law that will impede its implementation.”
Ed Whelan is not so sanguine:
But nothing in this routine order should be misread as signaling that the Court or any of its justices has a favorable view (or any view) of Liberty’s case. The order is simply a matter of proper housekeeping.
And Ian Millhiser urges us to keep calm and carry on–this isn’t a big deal.