Why the Little Sisters of the Poor shouldn't settle for a stingy exemption

The Little Sisters of the Poor won a victory of sorts at the Supreme Court this week. But I fear it is a temporary one that doesn't truly vindicate the freedom of the Catholic nuns.

Here's the background: Christian groups like the Little Sisters were initially required under ObamaCare to provide contraceptive services as part of their employee benefits package. But after they objected on moral and religious grounds, the White House created an "accommodation" that would let them opt out of providing such coverage directly. The Little Sisters, however, argue that the opt-out process still amounts to an authorization of these services. On Monday, the Supreme Court didn't rule on the merits of the case, but vacated lower court rulings that would have made the Sisters comply with the accommodation.

I'm glad that the Sisters "won," as they did. People who dedicate their lives to care for the poor and the dying deserve a break now and then. The truth is this accommodation, however it is accomplished, amounts to a fraudulent accounting trick, in which insurance companies provide contraceptive services, presumably from the funds they receive from the employer, and leave the line item off the bill. Its defenders say the costs are obviated because birth control coverage lowers premiums. Unlike other plaintiffs, the Sisters currently escape the moral burden because their insurers, Christian Brothers Trust, are exempted from the mandate as a church plan. But the Sisters have argued, sensibly, that this leaves their religious conscience at the mercy of the legal status of a third party which they cannot control. The insurer could begin providing the coverage; the Sisters would have signed for it. Or the Department of Health and Human Services could withdraw the exemption from their insurer.

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It is time for plaintiffs in religious liberty cases and for their advocates in the culture wars to try a different strategy. As the administrative state reaches deeper into our lives, and as it begins to provision positive rights to people through other private actors, the number and diversity of religious liberty cases are only going to grow. Right now, religious people ask for "exemptions" and "accommodations" to pursue their own goals because those goals are "religious." And they are granted narrow avenues to pursue these ends according to their (presumably quixotic) personal beliefs. Instead they should argue that their beliefs deserve the respect of the law because they are true, and that their actions deserve legal protection because they are good.

The framers of the Constitution, being deists and early enlightenment liberals, had pretty facile thoughts on religion. They singled religion out in the Establishment Clause. Unfortunately, this makes our legal system blind to the possibility that other unprovable principles or moral ethics that disclaim the banner of religion could become "Established" themselves. And so, smart commentators often start talking gibberish about these issues. They say that religiously-affiliated hospitals or nursing homes should be run on "secular" principles, because they serve the world. This presumes "secularism" is a knowable body of uncontested ideas that apply to any social mission. It's not.

And so, what you have in many of these religious cases is the state claiming to define all the permissible social ends or goods that corporations may pursue. Instead of the plaintiffs arguing that they should be free to pursue their own goals as they define them, they cede the state's authority to define what is good and ask only for an exemption. Essentially, what plaintiffs do by settling for stingy exemptions is tacitly admit that their social end is aberrant or deviant from the "Established" and uncontroversial norm of secularism. The public notices that instead of arguing for their moral vision in positive terms, plaintiffs simply ask to be recognized as merely "religious." And the public's suspicion of religion grows.

Modern "secularism" often amounts to nothing more than a mandate for bossing religious people around merely because they are religious. Secularism of this sort doesn't claim to say that abortions should be performed in all hospitals. It doesn't bother cancer hospitals or certain research hospitals with such claims. It has no problems if a hospital objects to performing an abortion based on allocation of resources, practicality, or a defined social mission that seems non-religious. Secularism only commands religious hospitals that object to providing abortion out of their conscience to provide them.

The same dynamic exits in gay marriage's cake cases. It is perfectly uncontroversial to decline to participate in someone's wedding solemnities because it is not to your taste or because it is at a venue that is further than you'd like to travel, or because you simply wanted that day off. But turning it down because your religious scruples forbid you to participate in such solemnities, that's against "secularism" and so it is placed into the same fiery furnace with other civil rights violations. You can see that this is an ethic that merely takes religious motivations and puts them into a category of suspicion.

And that is precisely how they are treated in court. When the counsel for the University of Notre Dame argued on the contraceptive mandate, Judge Richard Posner started opining wildly about the distinction between mortal and venial sins in Catholicism (something that was not at all a matter under litigation). Posner said, based on his own survey of language on Notre Dame's website, the university was inconsistent about following Catholic doctrines, heavily implying to counsel that therefore it had no moral standing to sue for its right to act in accordance with its beliefs on this matter. Notre Dame's counsel was ill-equipped to answer what amounted to a stream of consciousness rant against the Church. Naturally, Posner's ruling ignored everything in Notre Dame's brief.

Next time, lawyers arguing for religious causes should be equipped to answer the bigotry of their would-be judges. Catholics object to providing contraception as part of their benefits package for the same reason that hosts do not hide an emetic in the food they serve dinner guests. Fertility and virility are not diseases or maladies to be "cured," but signs of health. Just as you would be found guilty for obtaining poison for someone who intended to hurt themselves, a Catholic can not in good conscience become an accessory to another person's self-harm. The Sisters of the Poor should not be coerced to do what is abominable to their conscience, especially when they have served its common good so well. And further, no free nation should condescend or coerce them into hypocrisy with some phony accommodation either.

Editor's note: This article originally misstated the details of the plaintiff's insurance coverage. It has since been corrected. We regret the error.