“…what does Notre Dame want us to do?”
Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 552 (7th Cir. 2014) cert. granted, judgment vacated sub nom. Univ. of Notre Dame v. Burwell, No. 13A1238, 2015 WL 998533 (U.S. Mar. 9, 2015)(emphasis in original).
This question, posed by Justice Posner, is now a bit beside the point. The Supreme Court answered clearly, that whether or not Notre Dame asked for it, the Seventh Circuit Court of Appeals is to:
further consider[ation] in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014)
Univ. of Notre Dame v. Burwell, No. 13A1238, 2015 WL 998533, at *1 (U.S. Mar. 9, 2015).
Ms. Sebelius and Mr. Burwell are probably dead in the water on this case if Hobby Lobby applies.
But a side note intrigued me. 3 Notre Dame students sought to intervene at the Seventh Circuit on the issue of sincerity.
That is, that because of procedural wrangling by Notre Dame, including a failed attempt to dismiss its appeal, the 3 student Intervenors question the great University’s sincerity for purposes of applying the test of undue burden of religion by the regulation being questioned.
Justice Flaum would have allowed the dismissal and did not see it as manipulation.
In my judgment, if the university is willing to return to the district court and forego any chance at a preliminary injunction, we should not hold it to an expedited schedule that it did not request and to an appeal involving parties and arguments that it did not anticipate.
Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 563 (7th Cir. 2014) cert. granted, judgment vacated sub nom. Univ. of Notre Dame v. Burwell, No. 13A1238, 2015 WL 998533 (U.S. Mar. 9, 2015).
But now the Intervenors have the basis to create a fact issue (and remand from the Seventh Circuit) on whether Notre Dame has indeed the courage of its convictions. Notre Dame first sought injunctive relief without its sincerity being questioned by the government. Ironically, this may undercut the basis on which institutions like Notre Dame are opposing the government’s new work-arounds.