Little Sisters ‘ruling’ more reprieve than win

Case exposes larger threat to religious freedom

On Monday May 16 a U.S. Supreme Court remand order freed Little Sisters of the Poor and other religious nonprofits from having to choose between violating their religious beliefs or paying huge fines. Most observers considered this a “win” for Little Sisters and religious freedom. Many consider it only temporary.

Little Sisters of the Poor objected to Obamacare’s Health and Human Services mandate that their insurance carriers must cover contraception including abortifacients. Compliance would have forced them to violate religious beliefs or face huge fines.

HHS responded with a superficial accommodation that that did nothing to protect religious freedom. Lawsuits were filed and made their way through four lower courts to the Supreme Court. Three lower courts ruled in favor of the mandate, one ruled in favor of religious freedom. Seven cases, including Little Sisters were consolidated for the Supreme Court under Zubik v. Burwell.

The death of Justice Antonin Scalia, conflicting opinions of the lower courts, and likelihood of a 4-4-tie vote may have led to the Court’s attempt to settle, rather than litigate.

After hearing the case, the Court asked for more input from parties to the cases. That brought “substantial clarification.” It included admissions from the government that the HHS “accommodation” really wasn’t; and that it can modify the HHS mandate to be more respectful of religious liberty.

The Court then unanimously vacated lower court rulings, ordering them to reconsider their cases. It was an “opportunity” to arrive at an agreement eliminating any faith-based concerns, while ensuring that women in petitioners’ health plans get coverage that includes contraceptives. 1 The order also barred any fines for non-compliance.

Thus the Court avoided a judicial solution—deciding whether or not Little Sisters’ religious beliefs should trump government interests. Instead, they made a policy decision—requiring government meet its goals through one of the options it now admitted were possible. 2

This means the Court did not decide on the merits of any issues whether or not the HHS mandate violated the Religious Freedom Restoration Act. There is no legal precedent that could have helped protect RFRA itself and religious freedom as intended under the Act.

Will this go away?
The Court’s remand order to lower courts implied a burden existed, and looked to the government for a better accommodation. To support the Little Sisters case, the Catholic Defense League submitted an Amicus Brief to the Supreme Court. Based on Catholic doctrine, the Brief clarified why any complicity was a substantial burden.

Lower courts were asked to deal with how delivery of contraceptives can be “separate” enough to satisfy religious objections, and “seamless” enough to satisfy Obamacare advocates. Zubik II appears likely, as the Supreme Court would step in if parties on either side were upset over re-rulings. 3

If the lower courts that ruled against Little Sisters can reasonably anticipate appointment of a sympathetic ninth justice, they can re-rule the same way—no substantial burden—and look for a full-Court judicial decision. 4 Justices Sotomayor and Ginsburg’s “concurring” opinion actually highlighted the fact that “the Courts of Appeals remain free to reach the same conclusion.” 5 6

Are Catholics a Target?
The Supreme Court’s actions expose a troubling question. Why was there such a draconian push for compliance with the HHS mandate? The government had already exempted major corporate and government entities covering millions of Americans (1 in 3) from the mandate. Only after being challenged did the government admit Little Sisters’ compliance never had to be an issue.

It appears that Christians, and Catholics in particular, are targets of an agenda to counter any opposition, or exceptions, to an increasingly secular and politically correct administration. This is due in large part to the unwavering stands the Catholic Church takes on issues such as marriage, abortion, and contraception.

The government’s position is also bolstered by individuals and groups only slightly more obvious in their antagonism, even bigotry, towards the Catholic Church, its clergy and its members.

The right to religious freedom is increasingly vulnerable. Accommodation of religion is often linked in the public mind as reactionary even “bigoted” resistance to shifts in attitudes and laws regarding sexuality, family, marriage, and identity. It’s increasingly seen as a threat to the state’s ambitions and goals. 7

The Little Sisters’ case is only one example of how religious freedom is being eroded in America. It shows the importance Catholics speaking up early and showing up in the public square to defend religious freedom and the right to maintain a Catholic identity.

(1) Nelson Tebbe, Symposium: Zubik and the demands of justice, SCOTUSblog (May. 16, 2016), http://www.scotusblog.com/2016/05/symposium-zubik-and-the-demands-of-justice/

(2) Chad Flanders, Symposium: Into the weeds, SCOTUSblog (May. 16, 2016), http://www.scotusblog.com/2016/05/symposium-into-the-weeds/

(3) Chad Flanders, ibid.

(4) Chad Flanders, ibid

(5) Richard Garnett, Symposium: The future of accommodation, SCOTUSblog (May. 17, 2016), http://www.scotusblog.com/2016/05/symposium-the-future-of-accommodation/

(6) Nelson Tebbe, ibid.

(7) Richard Garnett, ibid.

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