Update (May 16): The Supreme Court announced today that it would not rule on a case involving Little Sisters of the Poor, the group of Catholic nuns leading the challenge against contraception requirements for religious nonprofits. Instead, justices unanimously decided to send their case back to the lower courts.
For now, the Supreme Court’s decision is good news for the Little Sisters, who still won’t face fines for not including birth control in their healthcare coverage.
“The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance,” stated the opinion. “Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them.”
The court expressed “no view on the merits of the cases” and pointed out that it did not decide whether “religious exercises has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”
The cases that were combined into the Little Sisters case will be tried again in the Third, Fifth, Tenth, and D.C. Appeals Courts where they came from.
“We are very encouraged by the Court’s decision, which is an important win for the Little Sisters,” stated Mark Rienzi, lead Becket Fund for Religious Liberty attorney for the Little Sisters of the Poor, in a press release.
“It is crucial that the justices unanimously ordered the government not to impose these fines and indicated that the government doesn’t need any notice to figure out what should now be obvious—the Little Sisters respectfully object,” he stated. “There is still work to be done, but today’s decision indicates that we will ultimately prevail in court."
The ruling signals that “there are ways to accommodate the religious convictions of the Little Sisters of the Poor, Baptist organizations, and other Christian groups without sacrificing their consciences,” said Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, in a short video.
“In some ways, this is something we ought to celebrate—that the court did take into account these basic principles of religious liberty,” he said. “In other ways, the very fact that we had to have this argument ought to remind us of how far we have to go in persuading our neighbors that soul freedom is not a government grant. Soul freedom is a right given by God.”
The US Supreme Court heard arguments today on whether the Little Sisters of the Poor will be required to offer birth control to employees on its health insurance plan.
The court took up the case after a string of decisions by lower appeals courts supporting the Affordable Care Act’s contraceptive mandate was broken. In September, the Eighth Circuit Court of Appeals ruled that Dordt College in Iowa and Cornerstone University in Michigan could not be penalized for refusing to accept the mandate.
If the court splits in a 4–4 vote, as many are predicting after the death of Justice Antonin Scalia, no national precedent would be set. The lower court decisions would stand, which means the Catholic nuns would lose their case.
But there’s much at stake for many American evangelicals as well.
The Little Sisters were grouped with similar cases, including GuideStone Financial Resources of the Southern Baptist Convention and five members of the Council for Christian Colleges and Universities (CCCU): Houston Baptist University, East Texas Baptist University, Geneva College, Oklahoma Baptist University, and Southern Nazarene University. Many evangelical groups filed amici briefs in their favor.
Should the Supreme Court split and the appeals court decisions stand, all of these organizations would lose.
“The Little Sisters of the Poor … face a dilemma,” attorney Paul Clement told the court this morning, according to The Baltimore Sun. “They can adhere to their religious beliefs and pay millions of dollars in penalties, or they can take steps that they believe to be religiously and morally objectionable.”
The Becket Fund for Religious Liberty, which represents the Little Sisters along with Christian Brothers Services, Christian Brothers Employee Benefit Trust, Houston Baptist and East Texas Baptist Universities, Reaching Souls International, Truett-McConnell College, and GuideStone, reported on some of the reaction from the bench:
At the hearing, the justices pressed the government with hard questions on why it is trying to force the Sisters to violate their religious beliefs when it has chosen to exempt so many other employers from the mandate. Justice [Ruth Bader] Ginsburg noted that “no one doubts for a moment” the sincerity of the Little Sisters’ beliefs. And other justices expressed concern the government was, in fact, “hijacking” the Little Sisters’ health plan and making them “subsidiz[e] conduct which they believe to be immoral.”
But Justice Sonia Sotomayor said that “women have a real need for contraception,” according to the Sun. And Ginsburg said “there has to be an accommodation, and that's what the government tried to do."
In 2014, when Obamacare came before the Supreme Court via the Hobby Lobby case, the court ruled 5–4 that employers who objected to the contraceptive mandate on religious grounds didn’t have to offer birth control directly to female employees. (Scalia ruled with the majority.)
The decision hinged on a sentence from the federal Religious Freedom Restoration Act (RFRA): “Governments should not substantially burden religious exercise without compelling justification.”
The government’s first pass at the contraceptive mandate was a substantial burden, according to the CCCU.
“The first iteration of the mandate in 2011 created an onerous burden for institutions that conscientiously object to providing contraceptives and/or abortifacients for religious reasons, as it contained only a very narrow exemption that applied to a small number of churches,” stated the council. “All other faith-based institutions were subjected to the mandate with no regard for their religious beliefs.”
After several adjustments, the government now allows insurers to pay for FDA-approved contraceptives that employers object to.
“Some institutions still argue the final version continues to interfere with their right to have their conscience unencumbered by federal law because it does not relieve them from the burden of providing these services altogether,” stated the CCCU. Nineteen member schools have sued over the matter, including the five in the Little Sisters case. Other schools have found other ways forward. Wheaton College, for example, dropped its student health coverage.
But University of Virginia law professor Douglas Laycock explained why, for the first time, he was siding with the government on a religious freedom case.
“[The plaintiff’s] real objection is to what their secular insurers are required to do,” he wrote for The Washington Post. “The religious objectors demand a right to control how the government regulates insurance companies.”
The religious groups’ reasons—that only they can identify a substantial burden on their exercise of religion and that the government needs to exempt the insurers of conscientious objectors along with churches and their auxiliaries—actually harm religious liberty, he argued.
Another unexpected voice in favor of the government: The Baptist Joint Committee for Religious Liberty (BJC), with along with Laycock has worked for decades to “enact, implement and defend” RFRA legislation.
“It is unusual, to say the least, for us to file for the government in a free exercise case,” wrote BJC general counsel Holly Hollman in an op-ed for Religion News Service. “Religious liberty is often threatened by government indifference or oversight. As this case demonstrates, it can also be endangered by exaggerated claims and overreaching.”
“These religious employers make far-reaching arguments against the exemption designed for them,” she argued. “In doing so, they threaten to take religious freedom law down with it.”
The Supreme Court’s decision will be handed down in June.
[Cartoon courtesy of Little Sisters of the Poor website.]