Taking religious claims seriously

Lyle Denniston says an order that the Supreme Court issued late last week in a case involving a Roman Catholic order of nuns, the Little Sisters for the Poor, suggests that the claim has already found some sympathy among the Justices.

The Supreme Court has some distance to go before it settles the claim, made in scores of cases across the country, that the new federal health care law intrudes deeply on the religious beliefs of some people and some organizations.  But an order that the Court issued late last week in a case involving a Roman Catholic order of nuns suggested that the claim has already found some sympathy among the Justices.

St_etheldredas_church_stainedglassThe order, giving a temporary victory to the Little Sisters for the Poor order in Denver and Baltimore, showed the court reaching for a solution entirely outside what is in the text of the new Affordable Care Act, or in the government’s regulations to implement that text, or even in the specific request made by the nuns.  In a manner of speaking, the court made it up as it went along.  It was reminiscent of the ancient power of the courts to achieve “equity” by decreeing solutions that seek to achieve fairness.
In the center of this case, and of the many similar challenges working their way through lower federal courts, is the new law’s so-called “contraceptive mandate.”   It requires employers who provide health insurance for their workers to include coverage for a range of pregnancy-related services.   Although the mandate does not include a specific duty to include abortion services in the coverage, Roman Catholic organizations and individuals have argued that some of the birth-control pills covered will achieve that result, and that intrudes on their religious objection to the termination of pregnancy.

Women’s rights groups vigorously contest that claim, questioning the medical premise of it.  And they argue that religious groups and individuals are simply attempting to impose their religious preferences on their female workers, especially, they say, since the federal government has gone to considerable lengths to give religious organizations an exemption from this particular mandate.  For Roman Catholic groups, the exemption does not go far enough.

That is the claim that the Little Sisters order took to the Supreme Court, and the one that the Justices – temporarily at least – were willing to concede.   The Little Sisters had aimed their opposition specifically at a government document that they had to sign in order to be free of a duty to obey the contraception mandate.  Since that document is the one that triggers a duty to provide such coverage for workers, at no cost to the workers, merely signing it – the Little Sisters’ lawyers argued – would put the order right in the middle of the new law’s scheme to provide access to the challenged pills and procedures.

The Little Sisters asked the Supreme Court to block the mandate, as it applied to them, while they continued a constitutional challenge that is now pending in a lower federal appeals court in Denver.  The federal government vigorously opposed the request, arguing that the Little Sisters are not at risk of having to obey the mandate at all, because their employee health plan is a so-called “church plan” and the Affordable Care Act doesn’t even apply to them.  So, the government contended, they should have no objection to filling out the government form that will definitely entitle them to go their own way without obeying the mandate.

The Supreme Court, after studying the Little Sisters request for more than three weeks (an unusual length of time for such a temporary matter), told the Little Sisters that they did not have to fill out the government form, and did not have to take on any role within the new law’s mandate provision.  All they had to do, according to the court, was to tell the government in writing that they were seeking a religious accommodation that would keep them free of the mandate.   Neither side had suggested that alternative, and the court’s order did not cite any legal authority for such a temporary solution.

The court, as one would expect, firmly insisted that it was not deciding the ultimate question of whether the mandate would or would not apply to the Little Sisters, after their case goes through lower courts.  Even so, the Justices provided a temporary remedy that strongly suggested that the Little Sisters had convinced the court that its claim of a government intrusion on their faith was more than plausible, had a ring of truth to it, and was at least convincing enough to spare them from the mandate for the time being.

While one might dwell on the temporary nature of what the court had done, because it left the underlying constitutional question unresolved, that aspect of it can be exaggerated.  The court clearly spent considerable energy pondering what to do, and came up with an answer that apparently was entirely satisfactory to the nuns.   And, in the process, it may well have sent a signal to lower courts that they, too, should take the religious claims seriously as they move toward final decisions on the Roman Catholic challenge.

At this point, though, it would be inappropriate to read into the order in the Little Sisters case any indication of where the court will wind up when it confronts – at a hearing in late March – a claim by profit-making business firms that the contraceptive mandate intrudes on the religious faiths of their Roman Catholic owners.  It is a completely novel question whether a for-profit corporation can actually engage in the practice of a religious faith.  There was no such novelty about the faith-based premise of the Little Sisters’ challenge.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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