EDITORIAL

Court Should Respect Religious Freedom

Posted

The Little Sisters of the Poor, who care for the elderly in nursing homes around the country, are not known for high-profile actions with high-level stakes.

But the sisters’ principled stand against the contraceptive mandate of the Affordable Care Act changed that, as their lawyers presented arguments to the U.S. Supreme Court last week in the much-watched Zubik v. Burwell case.

The Little Sisters of the Poor and other religiously affiliated groups consolidated as plaintiffs object to the government’s requirement that most employers, including many religious employers, provide coverage for contraceptives in their workers’ health insurance plans.

The sisters, strongly affirming the Catholic teaching that contraception is immoral, have borne the brunt of publicity on this important case—which could affect a broad range of religious freedom issues in the future.

The sisters and the other plaintiffs could very well have avoided a lengthy legal battle by accepting the Obama administration’s opt-out “accommodation” to arrange for a third party to provide contraceptive coverage.

The plaintiffs saw through that work-around, however, arguing that by signing an opt-out form they would be complicit in arranging for something that violates their religious beliefs.

And that, they argued, is not acceptable.

We agree, and we hope that the Supreme Court agrees as well.

The sisters and their fellow religious employers (including the Archdiocese of Washington and the dioceses of Pittsburgh and Erie in Pennsylvania, as well as church-affiliated colleges, hospitals and charities) are not seeking to throw out the Affordable Care Act (ACA), the national health insurance program also known as Obamacare.

Nor are they trying to get out of providing quality health care to the dedicated workers who are their critically important partners in ministry.

They do, however, want their status as religiously affiliated organizations recognized with a formal exemption from the contraceptive mandate. As of now, only actual churches, synagogues, mosques, and other places of worship and their support staff are exempt.

Religiously affiliated organizations, which typically serve and employ people of all faiths, are offered the accommodation if they want to opt out on religious grounds.

Now, arguing over exemption or accommodation may seem like nitpicking over a word to achieve the same end. But an exemption is written into a law; an accommodation, on the other hand, is a policy that can be changed at any time.

The larger issue, and the one that led the sisters and their fellow plaintiffs to argue that their rights are being violated under the Religious Freedom Restoration Act (RFRA), is how much power the federal government has over religious practice.

The RFRA provides that exemptions must be granted to entities with religious objections unless the government can show it has a “compelling interest” to withhold such an exemption, and if there is no other, less restrictive, alternative available.

One such alternative was suggested during the March 23 argument by Justice Samuel A. Alito, who wondered if the government could use the insurance exchanges created under the ACA to provide the contraceptive coverage.

A decision in the matter will not likely come before the end of June. But there is a very real possibility that with the unexpected death of Justice Antonin Scalia, the result could be a 4-4 tie.

In that case, decisions of five federal appeals courts that heard cases consolidated under Zubik v. Burwell would be upheld. Four of those decisions favored the government and one favored the religious groups. If those decisions were followed, it could result in different rules for different parts of the country.

We hope that it doesn’t come to that, and that the Court will exercise its good judgment to grant the exemption the plaintiffs deserve.