The Supreme Court’s unanimous decision to send the Little Sisters of the Poor case back to the courts below is a big victory for the Little Sisters and a big defeat for the Obama administration. So argues David French in National Review Online, and I agree. As French points out, an evenly split court could have left the Court of Appeals decision, in which case the government would have won and the Little Sisters lost.
The case concerns the application of the Religious Freedom Restoration Act, which requires a balancing of conscientious religious objection and obligations under laws. The Little Sisters here asserted that the government could have provided the object in view — free contraceptive coverage for the Little Sisters’ employees — without impinging on the Little Sisters’ conscientious objection to taking steps to facilitate provision of that coverage.
The court, unanimously, agreed, and set forth a basis on which this could be done:
“The court requested supplemental briefing from the parties addressing ‘whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.’ Post, p. ___. Both petitioners and the government now confirm that such an option is feasible.
“Petitioners have clarified that their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.
“Supplemental Brief for Petitioners 4. The government has confirmed that the challenged procedures ‘for employers with insured plans could be modified to operate in the manner posited in the court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.'”
French notes that this is the second case in which the Supreme Court has unanimously upheld religious liberty and ruled against the Obama administration, the other being Hosanna-Tabor v. EEOC. In that case, the court said the government could not decide which employees of a religious organization were clergy; that organization’s decision must be accepted. Indeed, at oral argument, Justice Elena Kagan called the government’s position “amazing.”
Conservative critics have charged that the court’s four Democratic-appointed justices — often referred to as the four liberals — are lockstep, unreasoning votes for liberal positions on issues that come before the court. But that’s clearly not the case on religious liberty issues.
In the Little Sisters case, the liberals could have produced a victory for the Obama administration’s attempt to force Americans to violate their religious consciences. Instead, they produced a defeat for that attempt and a victory for religious liberty.
