Here’s why the Little Sisters will lose (COMMENTARY)

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Mother Loraine, at the press conference after oral arguments at the 10th Circuit Court of Appeals. Photo courtesy of The Becket Fund for Religious Liberty

Mother Loraine, at the press conference after oral arguments at the 10th Circuit Court of Appeals. Photo courtesy of The Becket Fund for Religious Liberty

(RNS) In the Supreme Court, that is. How do I know this? OK, let’s back up.

In the biggest decision of its 2013-2014 term, the Supreme Court decided 5-4 that a for-profit corporation that objects to provisions of a federal law as impairing its religious freedom is entitled to an accommodation under the 1993 Religious Freedom Restoration Act. The case at hand involved the Affordable Care Act’s mandate that employee health insurance plans provide women with free contraceptive care.

Under rules developed by the Department of Health and Human Services, strictly religious organizations such as churches were exempted from the mandate. The idea was that women who worked for such organizations were likely to belong to the religious body in question and in any event could be expected to embrace or at least conform to its beliefs and practices.


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By contrast, religiously affiliated nonprofits such as the University of Notre Dame and the Little Sisters of the Poor (an order of nuns that runs a couple of dozen nursing homes) received an accommodation, under which they are supposed to fill out a form for the government stating that they object to the contraception mandate. The government will then tell their insurance company to provide their women employees with the free coverage at the company’s expense. The idea is that employees of such nonprofits cannot be expected to hew to the religious principles of the religious body with which they are affiliated.

In the Hobby Lobby case, the court told the Obama administration to give a “closely held” for-profit that demonstrates a bona fide religious commitment the same accommodation the government provides to a religious nonprofit. In his majority opinion, Justice Samuel Alito left open the question of whether the accommodation was itself sufficient. Faced with a difference of opinion at the appellate level, the court last Friday (Nov. 6) agreed to take up that question.

The Little Sisters, Notre Dame, et al. claim that filling out the government waiver makes them responsible for — or as Aristotle and Aquinas would have said, the final cause of — practices they find religiously intolerable. What they want is the complete exemption afforded to churches.


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They won’t get it.

The Religious Freedom Restoration Act says that religious objections to a federal law can be overturned only if the government has a compelling interest in doing so. In the Hobby Lobby case, Justice Anthony Kennedy became the majority’s crucial fifth vote with the help of a concurrence declaring that indeed to be the case. “There are many medical conditions for which pregnancy is contraindicated,” Kennedy wrote. “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”

And the Kennedy concurrence finds the accommodation for religious nonprofits to be a valid means of reconciling that compelling interest with religious liberty: “In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here.”

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a contributing editor of the Religion News Service. Photo courtesy of Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college’s Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a contributing editor of the Religion News Service. Photo courtesy of Mark Silk

Just as Kennedy stuck with his earlier positions on gay rights and voted in favor of a constitutional right to same-sex marriage last June, so he will stick with these dicta and provide the crucial fifth vote to uphold the Obama administration’s non- (and for-) profit accommodation of the contraception mandate.

(Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college’s Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a contributing editor of the Religion News Service.)

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  • Bernardo

    Dear Professor and Fortune Teller Silk,

    Once again:

    The Sisters even though apparently not being forced to pay directly for women’s contraceptives (men’s contraceptives are not covered under the ACA) are still being forced to approve of birth control methods that go counter to their beliefs. And insurance companies pay for nothing. What costs they incur by supplying women’s contraceptives will be passed on indirectly to either the Sisters and/or their other subscribers raising rates in either or both cases.

    Again, the issue is minute in comparison to the high failure rates of the Pill and the male condom with both failures leading to the high rate of abortions and STDs in this and other countries. Details have been previously presented and can be calculated from the statistics provided by the Guttmacher Institute. guttmacher.org/pubs/fb_contr_use.html

    (note: said calculations assumes some knowledge of dimensional analysis- )

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  • TheGodless

    There is no difference between a religious group providing money to people that can or can’t be used to acquire contraceptives or providing them insurance that can or can’t be used to acquire contraceptives with. Unless the religious group is directly acquiring the contraceptives, they don’t share any responsibility in people using contraceptives. So called “religious freedom” was only meant to protect people’s rights to practice their religions, not for them to be able effect other people’s lives with their religious beliefs and/or practices. The government shouldn’t be in the business of determining what religions and religious practices are legitimate and worthy to “freedom” anyways. Anyone can start a religion and make absurd demands, even if done so in jest, and the government, under our current system, has no choice but to ensure the religion’s so called “freedom”.

  • musicman495

    The Sisters are not being forced to approve of anything. They are being asked to fill out a form that affirms they are exempt from the mandate. Filling out the form is no more a burden than filling out a form that affirms they are exempt from sales tax. And the indirect cost canard is a fallacy – there is no indirect cost in the form of higher premiums. Insurance companies save money paying for contraception vs. pregnancy and childbirth.