Want to hear a depressing question?
How many years, or even months, will it take for someone to pull the Little Sisters of the Poor back to the U.S. Supreme Court for another case linked to the status of Obamacare’s contraception mandate?
That’s right. The odds are good that we can brace ourselves for yet another Little Sisters of the Poor vs. the United States of America (or maybe the leaders of a blue-zip-code state or local government).
I predict that we will see Little Sisters of the Poor Round 4 in the headlines sooner or later, for reasons that host Todd Wilken and I discussed during this week’s “Crossroads” podcast (click here to tune that in).
For starters, in this recent case the high court upheld an executive order from the Donald Trump White House, as opposed to grounding its decision in the defense of a specific piece of legislation — as in the Religious Freedom Restoration Act (RFRA) of 1993. You may recall that this bill defending a liberal (in the old sense of that word) take on religious freedom passed with an impressive margin — 97-3.
One of the sponsors of that legislation — which was backed by a Clinton-Gore era coalition of liberals and conservatives — had this to say about its importance:
Today I am introducing legislation to restore the previous rule of law, which required the Government to justify restrictions on religious freedom. …
Making a religious practice a crime is a substantial burden on religious freedom. It forces a person to choose between abandoning religious principles or facing prosecution. Before we permit such a burden on religious freedom to stand, the Court should engage in a case-by-case analysis of such restrictions to determine if the Government’s prohibition is justified. …
This bill is needed because even neutral, general laws can unnecessarily restrict religious freedom.
That was U.S. Sen. Joseph Biden, of course, during an era when he was considered a moderate who tended to stand with the U.S. Catholic Bishops on quite a few social and moral issues.
The question now is this: What are the odds that one of the first things President Joe Biden’s team will do is erase most, if not all, of the Trump-era executive orders linked to religious liberty and the First Amendment?
That would be quite a news story. At that point, journalists who cover church-state issues will need to ask: Does Biden still back RFRA or, at this point, have various doctrines linked to the Sexual Revolution trumped that old liberal conviction?
Get ready for Little Sisters of the Poor, Round 4.
After all, I received quite a few digital press releases after the decision that looked something like this hot take (complete with a header stating “For Immediate Release: !!!!!!!!!!!”):
Supreme Court’s Little Sisters Ruling Means Dogma Trumps Everything, Says Center for Inquiry
The Center for Inquiry denounced the Supreme Court’s decision today in the case of Little Sisters of the Poor v. Pennsylvania, in which the Court ruled in favor of broad religious exemptions to the contraception mandate of the Affordable Care Act. CFI, which advocates for public policy based on science and secularism, decried the ruling for placing religious beliefs over the health of women and the rule of law.
“Once again, religious groups and corporations have been told to go ahead and ignore the rules that apply to everyone else, this time for the purpose of legitimizing antiquated dogma about contraception,” said Nick Little, Vice President and Legal Director of the Center for Inquiry. “Showing no regard for the well-being of employees, for women’s rights to bodily autonomy, or for the separation of church and state, the Supreme Court has done what Trump and his allies in Congress could never achieve through a normal legislative process: repeal an integral part of the Affordable Care Act.”
“Accommodations made to religious groups in the original law were already too extensive and now the Court has made it immeasurably worse,” said Robyn Blumner, CFI’s President and CEO. “Contraception is an integral part of women’s health care and should be part of any health insurance plan, but this Court has decided that an employer’s faith-based issues with contraception takes precedence,” she added. “Essentially the Court is approving of the idea that employers may impose their religion on their workers.”
Now, there is another way to state what happened in this case.
One could argue that a religious ministry (and other doctrinally driven nonprofits) have a right to ask members of its staff to support the teachings of the cause that employs them and the donors who pay their salaries. Can the leaders of these religious organizations ask employees to honor the documents that they signed when they accepted jobs with this or that ministry?
Ponder this: Can one expect the leaders of a religious ministry (or maybe a nonprofit environmental group or a think tank working for immigration reform) to take actions that violate the doctrines of the faith on which their work is based? Many nuns don’t like to do things like that.
Stated another way, was this a case in which the government demonstrated an urgent need to become entangled (a key church-state term) in a doctrinal fight between orthodox and modern Catholics? Did anyone prove that thousands of people who chose to work with the Little Sisters of the Poor had lost access to birth control, including drugs that some consider abortifacients?
The Little Sisters case was not, of course, the only church-state blockbuster the other day at the high court. Here’s the top of the other CFI press release:
Center for Inquiry Denounces ‘Ridiculous’ SCOTUS Ministerial Exception Ruling for Teachers
The Center for Inquiry (CFI) criticized the Supreme Court’s rulings in the twin cases of Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel as expanding the Ministerial Exception beyond all reasonable and sensible limits, and handing a carte blanche to religious organizations to discriminate free from government oversight.
At the heart of this case was another “entanglement” issue. The big question: Does the government have the right to define who is a “minister” and who is merely a “teacher” in a religious nonprofit school that asks faculty members and and employees to sign doctrinal and lifestyle codes defending the institution’s core beliefs?
Church-state activists can expect these issues to return to the court.
Why? First of all, expect challenges on the rights of, let’s say, LGBTQ believers who hold staff posts — as opposed to teaching jobs — at Catholic and Protestant schools. Are coaches “teachers”? How about cafeteria workers?
Also, this SCOTUS decision on the status of teachers/ministers does not appear to address how faith-based schools handle issues linked to the behavior of students. Will activist groups on the cultural and religious left start challenging the lifestyle and doctrinal codes that many students sign when they enroll at religious colleges and universities.
Can you say “Bob Jones University v. the United States”? Trust me, lots of Sexual Revolution warriors have that URL bookmarked and they are looking for test cases right now.
So will these kinds of Sexual Revolution vs. Religious Liberty fights keep showing up at SCOTUS?
Well, read these two NPR headline out loud, using a loud, frustrated tone of voice (if you wish to do so):
Supreme Court Carves Out Religious Exception To Employment Laws
Now try this one:
Supreme Court Undercuts Birth Control Access Under Obamacare
How did that feel? Maybe something like the following movie speech? There are times when everybody involved in these battles sounds a bit like old Bluto.
Now, before you click “play” on the following Baby Boomer movie classic, let me add: Enjoy this week’s podcast and please pass it on.
