A War of Choice

Um, in truth, the Obama administration has never made entirely clear why it’s so desperate to rope nuns into bureaucratic schemes for providing contraception. After all, the administration has let other organizations slip through the cracks. Unions have their exemptions, Congress has its exemptions, and the politically connected seem able to get Obamacare waivers for the price of a postage stamp. Nearly “every other party who asked for protection from the mandate has been given it,” says Mark Rienzi, a senior counsel for the Becket Fund. “It made no sense for the Little Sisters to be singled out for fines and punishment. .  .  . The government has lots of ways to deliver contraceptives to people — it doesn’t need to force nuns to participate.”

A quiet waiver for the Sisters back in 2012 would have saved the administration some of the political headache of defending Obamacare, yet again, before the Supreme Court. If nothing else, the waiver would have put a less sympathetic group as lead plaintiff in this case. Just listen to the name: Little Sisters of the Poor. Even Justice Sonia Sotomayor, from the liberal edge of the Supreme Court, couldn’t stomach the Tenth Circuit being mean to the Little Sisters; in January 2014 she issued the emergency injunction that has brought the case to the full Court.

Recently, however, the Judicial Crisis Network’s Carrie Severino, writing one of the many amici briefs for the Little Sisters case, has directed attention to emails from officials at the IRS and the Centers for Medicare and Medicaid Services. Why has the Obama administration insisted on applying an unrelated tax regulation (a provision defining the entities that have to file tax returns) to determine which religious groups fall under the contraception mandates of Obamacare? The answer starts to emerge when, in the light of the administration’s intransigence in the Little Sisters case, we look back at those emails.

In October 2011, for example, Medicare’s Alexis Ahlstrom wrote her agency’s law and policy advisers to find out “what student health plans at catholic universities cover today. Can we reach out to our sources at Aetna and Nationwide to see if they can answer the question?” And in July 2012, a flurry of IRS emails refer to Catholic Charities, the U.S. Conference of Catholic Bishops, religious nursing homes, religious hospitals, and Catholic colleges — all in an effort to define a policy that would sidestep the constitutional problems of compelling churches even while it forced religious institutions to obey the Obamacare mandates for contraception (including abortifacients).

None of this is exactly new. The 2012 emails have been available since their 2013 release by the House Committee on Oversight and Government Reform, which subpoenaed them from the IRS. But we’re seven years into the Obama administration, and the pattern of opposition to religious institutions— the pattern apparent in those emails and culminating now in the Little Sisters case — is visible for all to see.

Back in 2009, in the early days of Obama’s presidency, there was some talk of the new administration’s care for the religious. Thus, for example, while she was secretary of state, Hillary Clinton would occasionally speak of this country’s commitment to “freedom of faith,” at home and abroad.

We should have seen the problem signaled by that slightly odd phrasing, for “freedom of faith” is the freedom to hold one’s faith in private, and the religious attack in America has not been an attack on faith. Not really, not in its essence. No one has proposed that government agents break into the homes of believers to wrench the crucifixes from the walls and the mezuzahs from the doorways.

The attack has been instead on religion itself — the freedom of faith to assert itself in public. The old argument was that religion had intruded too far into governmental space, and thus, for example, public-school prayer had to be banned and religious monuments needed to be removed from public parks and courthouse grounds. The newer notion, percolating through the years of Obama’s presidency, is that religion has intruded too far into public space, and thus any exemption from the practices of ordinary businesses is inherently bad.

In this schema, the state controls more than its own property. It controls anything that appears in public, and the strictures that limit governmental religion must also limit public religion. Our government has become a jealous one, hungry to claim all authority — moral as well as legal and political — that once existed in other institutions.

The churches suffer from this notion, to some degree. But they are not the reason for the prosecution of the Little Sisters of the Poor. The target is, instead, what we might call the in-betweens — the organizations that are the expression of faith out from the churches and into the public realm. Hospitals, colleges, prep schools, orphanages, homeless shelters, nursing homes: Every such institution, by performing its work, seems an outrage, an offense against the monopoly on public life that government claims. Each is an assertion that moral and social authority can derive from sources other than acts of law.

The administration has refused religious accommodation precisely because it is religious, and these in-between institutions must be brought to heel. They must be made indistinguishable from nonreligious institutions. And if the Little Sisters of the Poor get forced out of their nursing homes, that’s a shame, perhaps — but it’s the price of doing business, when a jealous government has seized the public square.

Freedom of faith, perhaps: Believe what you want, in private. But freedom of religion, absolutely not: Everyone must conform, in public.

Joseph Bottum is a contributing editor to The Weekly Standard.