The Little Sisters of the Poor got a big decision from the U.S Supreme Court last week.
The eight sitting justices decided unanimously to express “no view on the merits” of questions raised by the Little Sisters in a case about religious liberty and required coverage of contraception in insurance policies. Instead, they sent those questions back to the lower courts for further briefing and resolution.
The move, characterized in some early headlines as “punting,” made no explicit statement about the government’s duty to preserve religious freedom versus its new-found need to provide unfettered access to free contraception.
But it did vacate lower court rulings favorable to the government.
As National Review writer and attorney David French explains, “When the court vacates the ruling you’re challenging, that’s a win.”
So those Americans who still value their religious liberty and who have sustained a seemingly constant battering of their first freedom by the current administration should view the ruling as a notable — and, we can hope, enduring — victory.
The case revolved around the Obamacare requirement that employers, including the Little Sisters, provide a wide array of contraceptive and abortifacient coverage (including the morning-after pill and surgical sterilization) in their health insurance plans.
For the Little Sisters and their co-plaintiffs, providing such coverage — even by way of what the government described as an “accommodation” — was a gross violation of their religious beliefs.
To make matters worse, failure to provide the required coverage would result in financial penalties so steep they would break almost any business, let alone a charity organization.
The government, the court said, “may not impose taxes or penalties” on the Little Sisters for failure to give relevant notice of refusal to provide the contested coverage, essentially removing the cudgel the administration was using to beat them into submission.
The court suggested that the parties should be able to find a means of seamlessly delivering contraceptives that doesn’t violate the religious objections of the Little Sisters and their co-plaintiffs.
Indeed, the court’s opinion explained how in a supplemental briefing the government conceded that such a resolution was possible, despite its earlier insistence that the existing “accommodation” was the only available option.
While the justices were careful to warn that the ruling should not be construed as any indication of “where this Court stands,” the context is important.
As French explains, “this is the second time a unanimous Supreme Court has turned back the Obama administration’s regulatory efforts to restrict religious freedom” — quite a feat, given that many observers were expecting a 4-4 ruling that would let the government’s circuit court victories stand.
The decision suggests that the administration’s aggressive push against religious liberty has in some circumstances been “too hard even for the Supreme Court’s more liberal justices.”
But make no mistake. This victory is one in many battles to come over the future of religious freedom in America.
Religious belief is under attack not only by an overly intrusive federal government but by an increasing level of misunderstanding, indifference and even hostility to religion from society at large.
William McGurn of The Wall Street Journal warns that a growing portion of America unfortunately “regards religion as a collection of irrational beliefs. They simply cannot fathom why folks with such beliefs ought to be exempt from laws that seem obvious to them and that everyone else is expected to obey.”
The religious devout are often unfairly seen as ignorant; the devotion to their faith little more than a thin veil to disguise bigotry.
And with the growing number of non-religious Americans, pools of potential allies are rapidly shrinking.
That is all the more reason for the Little Sisters and their sympathizers to cherish their hard-won victory. Such results may be ever more rare in the years to come.
Cynthia M. Allen is a columnist for the Fort Worth Star-Telegram.
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