Is it up to the Supreme Court to save religious liberty?

Following the death of Justice Scalia, will the Supreme Court reverse what has been its recent record of protecting religious liberty? After its two gay-marriage decisions in the last three years, with their deepening implications for religious freedom, many Americans of faith may not sufficiently appreciate that in the last five years, the Supreme Court has issued two decisions, one unanimous, that have turned back the Obama administration’s attempts to undercut the ability of religious people to live according to their convictions. Now, however, with the Court having set March 23rd as the date to hear oral arguments in the case of the Obama administration versus the Little Sisters of the Poor, everything could change.

In the Hosanna Tabor case (2012), a Lutheran elementary church and its school fired a teacher of religion and other classes because she had narcolepsy. The teacher had been on disability leave and had wanted to return to teaching, but the school decided that she was not ready to return. Invoking the Americans With Disabilities Act, the Obama administration’s Equal Employment Opportunity Commission sued. The school defended itself by arguing that the teacher was one of its trained and designated “ministers,” and, therefore, its decision to terminate the teacher was protected under the Free Exercise Clause of the First Amendment.

The Supreme Court unanimously held for the school. The decision is the first time in our history that our highest court has ever recognized a “ministerial exception” in employment law. That exception had been the basis of rulings in lower federal court for decades. It took the Obama administration to attempt to extinguish it by overturning those rulings and law. The argument of the Obama administration was that the religion clauses of the First Amendment did not even apply! Instead, it argued that the case should have been addressed under freedom of association, a derivative right not mentioned in the text of the First Amendment but recognized by the Supreme Court. Writing for the unanimous Court, Justice Roberts rebuked the Obama administration for its “extreme position” and for “the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

For a religious issue of comparable gravity, one would almost have to go back to American colonial times when some colonies prohibited Catholic priests altogether. If the federal government can prescribe who is and who is not a minister, it is difficult to imagine what the free exercise of religion might mean in this country. For, religion does not exist aside from its ministers. “How are they to hear without a preacher?” (Rom 10:14).

The issues and the arguments in the Hobby Lobby case (2014) were more complicated, but the decision of the Supreme Court upheld religious liberty again. Under Obamacare, the Obama administration had sought to force the arts and crafts store, Hobby Lobby, owned by Evangelical Christians, and Conestoga Wood Specialties, a woodworking business owned by Mennonites, to provide contraceptive services to its employees. Both businesses, facing enormous and daily fines from the federal government, objected that such coercion violated their religious beliefs because certain contraceptives are abortifacients.

The Obama administration invoked federal jurisdiction pursuant to its own executive “mandate” issued by the Department of HHS pursuant to Obamacare that required all health plans nationwide to include contraceptive services. As a preliminary matter, by a 5-2 vote, the Court ruled that the two businesses were “persons” and therefore protected under the Religious Freedom Restoration Act, a 1993 federal law. By a 5-4 vote, the Court, with Justice Alito writing the opinion, then noted that religious institutions, religious employers, and non-profit corporations were recognized as “persons” protected by the Act, and it decided that there was no reason why for-profit businesses should not also be so recognized.

The Obama administration and the dissent authored by Justice Ginsburg argued that corporations cannot exercise religion. Justice Ginsburg distinguished religious organizations from corporations because the former “serve a community of believers,” which corporations do not. She warned that the Court’s logic extends to “corporations of any size.” The Court countered that the line between for-profit and non-profit corporations is not so clear, that for-profit corporations routinely engage in humanitarian and altruistic endeavors, and most importantly, that the purpose of a right of religious liberty applied to corporations is to “provide protection for [the] human beings,” including “shareholders, officers, and employees” who make up corporations.

The Obama administration and the dissent argued that there was no other way to supply contraceptives to the employees of the two businesses, but the Court countered that the federal government could itself pay for contraceptive services and also pointed out that the Department of HHS had already provided an exception route for “non-profit organizations with religious objections.” It could go ahead and provide the same exception for for-profits, the Court suggested.

The Court explicitly limited its decision to the contraceptive mandate and stated that it did not apply to, for instance, a generally applicable law requiring vaccinations. And the decision is also limited to the kind of “private” (not publicly traded), closely held corporations like Hobby Lobby and Conestoga.

It must be emphasized that both the Hosanna Tabor and Hobby Lobby decisions were unprecedented, probably because no federal administration had ever dared to sue religious organizations or “persons” under the same pretexts. Hosanna Tabor stands for the stupendously important principle, recognized by the Supreme Court but not the Obama administration, that religious institutions may select their own ministers. Hobby Lobby stands against the increasingly prevalent view of liberal society that religion is okay so long as it is restricted to Sunday morning or at least confined to things that happen on church properties. Hobby Lobby means that religious people may live their religion all the time.

So, now the Little Sisters of the Poor are decreed a public enemy by the Obama administration, and their case will be decided by the Supreme Court at the end of the present term, which will also be in the heart of the presidential campaign and now without Justice Scalia. By twice stopping the lower courts from immediately enforcing the contraceptive mandate against the Little Sisters pending the resolution of the suit, the Court has already intervened in somewhat unusual fashion.

Pending is the Little Sisters’ appeal of the 98-page decision against them by the Tenth Circuit Court of Appeals – a 98-page sententious contortion that attempts to make the decision seem like an everyday discretionary regulation of government rather than the fearful coercion of the poorest of the poor dedicated to the poorest.

The Court ruled that the HHS contraception mandate did not “substantially burden” the Little Sisters’ religious rights under the First Amendment. HHS came up with what it called an “accommodation,” whereby the Little Sisters’ health plan would be notified by and required by HHS to provide contraceptive services directly to the Little Sisters’ employees, thus, supposedly relieving the Sisters from any affirmative act of compliance, but ignoring the fact that it was still their health plan that was providing the services.

The Hobby Lobby decision was the chief point of contention in the decision. The Little Sisters argued that if the for-profit Hobby Lobby merited protection from government because of its religious convictions, then the Little Sisters, a completely religious organization, merited the same or more than the same. The Tenth Circuit based its decision on the abstruse distinction that Hobby Lobby involved the mandate itself whereas this case involved the accommodation. The Obama administration argued that the exemption in the mandate applied only to churches but not to non-profit charitable and educational institutions. Thus, it attempted to exclude by definition the alternative “accommodation” scheme suggested in dicta by the Supreme Court in Hobby Lobby. The administration’s position amounted to telling the Little Sisters that they are not religious enough.

In ruling against the Little Sisters, the Tenth Circuit emphatically concluded that it and it alone would decide if and to what degree the Sisters’ religious liberty was affected: “whether a law substantially burdens religious exercise in one or more of these ways is a matter for courts—not plaintiffs—to decide.” The Court then decided that the accommodation scheme promoted the legitimate purposes of “public health and gender equality” and that the effect on the Little Sisters was “neutral” and without a “substantial burden” on them. Women were “guaranteed contraceptive coverage under” Obamacare, and that was that.

Among the supporters of the Little Sisters who filed briefs on their behalf: are twenty states (except for Wisconsin and Michigan, all Southern, Midwestern, and Western states), as well as Orthodox Jewish rabbis, the Council for Christian Colleges and Universities, and the libertarian Cato Institute. Joining the Catholic sisters as co-plaintiffs are Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and others. And there are fifty-six similar suits by various religious organizations, not just Catholic.

In Hobby Lobby, the Supreme Court suggested a compromise based on an already-existing regulatory exemption for religious organizations. But in the Little Sisters’ case, the Obama administration is trying to exclude a convent of nuns from that exemption. Such is the state of American society and of religious liberty in American society that the United States government is not in the slightest bit embarrassed to persecute an organization that calls itself “the Little Sisters of the Poor.” Twice in the last four years, the Supreme Court has stopped the Obama administration. Without Justice Scalia, who was part of the 5-4 majority in Hobby Lobby, will it and can it do so again?

If the Supreme Court splits 4-4 in the Little Sisters’ case, then the decision of the Tenth Circuit against the Little Sisters will stand. What will the Little Sisters do then? And what will be the status of religious liberty?