(RNS) When the Supreme Court on Monday (June 30) issued a split decision narrowly backing the right of for-profit corporations to deny contraception coverage to their employees for religious reasons, many assumed that faith-based nonprofits would have it easy when their own cases eventually reach the high court.

“The death knell is sounding for the HHS mandate,” said Lori Windham, an attorney at the Becket Fund for Religious Liberty, which is representing the Little Sisters of the Poor, an order of nuns, as well as other religious groups that object to the Health and Human Services Department policy requiring birth control coverage.

Windham noted that in two rulings by lower courts on Monday, several of Becket’s faith-based clients received last-minute relief to shield them from complying with the mandate, which takes effect today (July 1).

“The ruling in Hobby Lobby and then these two rulings in quick succession show that the HHS mandate is on its last legs when it comes to religious nonprofits,” Windham said.

The Little Sisters of the Poor organization was founded in the 1840s by Jeanne Jugan. Its members take four vows, those of chastity, poverty, obedience and hospitality.

The Little Sisters of the Poor organization was founded in the 1840s by Jeanne Jugan. Its members take four vows, those of chastity, poverty, obedience and hospitality. Public domain image

Yet many analysts say that in fact what worked for Hobby Lobby — the national craft store giant owned by the Green family, who are evangelical Christians — may not necessarily work for the Little Sisters, who operate nursing homes for the poor around the country.

The nuns are the main plaintiff for a range of religious nonprofits and institutions who argue, in cases that paralleled the claims of for-profit businesses, that complying with the Obama administration’s mandate to provide free birth control coverage would violate their religious freedom because they object to contraception.

So when those cases reach the Supreme Court, why wouldn’t the Little Sisters eventually receive the same treatment, or even greater deference, than a corporation like Hobby Lobby or Conestoga Wood Specialties, its Mennonite-owned co-plaintiff?

The key difference is that the Health and Human Services Department (HHS) has already offered an accommodation to faith-based nonprofits that allows them to sign a waiver giving a third-party administrator permission to take care of the birth control coverage, with no further involvement by the religious group.

The Little Sisters and others argue that even signing such a waiver entangles them in something they view as morally objectionable. (Hobby Lobby and other plaintiffs do not object to contraception per se but are concerned about what they say is mandated coverage of abortion-causing drugs.)

But Justice Samuel Alito, writing for the majority in Monday’s 5-4 decision, suggested that the accommodation offered to religious groups could have been a fine solution if provided to for-profit corporations as well.

“That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests,” Alito wrote.

That in fact was the same argument made by Hobby Lobby’s lawyers in oral arguments before the Supreme Court in March — a move that prompted Michael Sean Winters at National Catholic Reporter to suggest at the time that if the justices accepted that line of reasoning, “religious organizations will not have a leg to stand on.”

After the decision came down on Monday, Winters said that in fact that’s just what happened.

Writing for Religion News Service, Mark Silk, director of the Leonard E. Greenberg Center for the Study of Religion in Public Life at Trinity College, also predicted in March that the justices would decide as they did this week — and on Monday he wrote that if they follow their logic when the faith-based groups come before them, the Little Sisters et al. could be in trouble.

The key factors are twofold, Silk explained:

One is that the majority based their decision on the Religious Freedom Restoration Act, or RFRA, of 1993, which requires that the state must have a “compelling interest” if it is to infringe on religious rights, and it must use “the least restrictive means” possible.

The majority essentially assumed, but did not rule, that the government did have a compelling interest in providing birth control coverage to women. But the five justices said the government could find a better, less restrictive way to accomplish that goal, like paying outright for the coverage.

Yet Justice Anthony Kennedy, in a concurring opinion, pointedly noted that “the means to reconcile those two priorities are at hand in the existing accommodation.”

And Kennedy is the second factor clouding prospects for the nuns and others, because he is considered the swing vote on the court, and when the Little Sisters’ case comes up he could swing the other way.

In fact, the Hobby Lobby decision, Silk predicted, “will prove to be a significant setback for the Catholic bishops and other free exercise maximalists, a good omen for contraception coverage advocates, and a fine result for those interested in a reasonable balance of the interests at hand.”

University of Virginia law professor Douglas Laycock, a leading religious freedom expert, agreed that the court’s suggestion “that the government’s accommodation for nonprofits is a less restrictive means for the for-profits does not bode well for the nonprofits.”

“The court specifically does not decide the claims of religious nonprofits who don’t even want to send the form claiming the objection,” Laycock said. “But I would not be optimistic about that claim.”

At Mirror of Justice, a Catholic legal blog, University of St. Thomas law professor Thomas Berg welcomed the ruling but also predicted that the majority opinion and Kennedy’s concurrence “imply that some form of the nonprofit accommodation will be held a permissible solution.”

And at First Things, a conservative journal of religion and politics, St. John’s University law professor Mark Movsesian conceded that “the language here is a bit opaque and may cause trouble in future.”

On the other hand, Kim Daniels, a former spokeswoman for the U.S. Conference of Catholic Bishops and an attorney specializing in religious freedom issues, contended that there was “strong language” in the majority opinion supporting the claims of religious nonprofits like the Little Sisters.

Daniels also did not read Kennedy’s opinion as undermining that stance.

“I think that worries about Justice Kennedy’s opinion are misplaced,” Daniels, now a senior adviser to Catholic Voices USA, wrote in an email. “I find it hard to believe that Justice Kennedy would confirm RFRA protection for for-profit corporations, but not for the Little Sisters of the Poor and others like them.”

Daniels and others also noted that the majority also explicitly refused to engage the underlying religious claims being made by Hobby Lobby and Conestoga — claims that would be central to the arguments by the Little Sisters and others, and which could underpin a ruling in their favor.

Or not.

Ira Lupu, George Washington University law school professor emeritus, essentially threw up his hands and called the impact of the ruling on the Little Sisters case “completely uncertain” — a view that was probably more widespread than any claims about what the justices will, or will not, rule when the faith-based nonprofits come before the high court.

YS/MG END GIBSON

38 Comments

  1. It’s telling, how we all discuss and read about thinkers who obsess over what a gov will allow the to do, and won’t allow them to do to other “free” people.

    Such a mentality of total entrapment. Nevermind that we could all opt to just let people live, and not force them to accomodate to my choices. No, no. Republicans and dems alike need and cannot imagine a giant gov that they are not in control ofm. A giant overpowering gov is a given in the mind of both groups.

  2. More BS from the fake “pro-life” crowd and another ruling by the numb-nut conservatives on the SCOTUS. Proof positive that Conservatives of today are terrible people. The people’s right to be free from religion is eroding. Now if you are an employee of a company you are subject to the mythological based ideologies of the owners of that company.

    So what if your employer was Christian Scientist and was against blood transfusions or the use of any medications?

    Supposedly this is about protecting life but Christian Republicans don’t care about life. I never heard a peep out of you hacks when we went and killed 200,000 innocent Iraqi civilians and 4500 US service men and women in a war based on lies. If Christians were consistent I’d be cool with them, but they are not.

    How are Republican Christians any different from crazy lunatic Islam? They both think everyone else should have to live under some old world made up rules about some god that someone made up a thousand years ago.

    I’m tired of the morons who vote for Republicans. This is no longer about the GOP leadership, it’s about the moronic and angry folks who pull the lever for Republicans every election. They are who is responsible for getting these terrible hacks on the most powerful court in our country.

    Republicans are great at telling women what they can do with their bodies and stirring up some angry racists, but that’s about it. Stop voting for Republicans America. Please!

    • “The people’s right to be free from religion is eroding”.

      Oh, you must have missed it. This last weekend all the major cities in america had dancing, naked gay people in thr streets. Most major civic leaders were in attendance. Not a single police officer was called to enforce any traditional rule or law regarding public obscenity or lewdness. So….yeah, I don’t think you were accurate enough in your statement to have a point.

      • The Great God Pan

        “Not a single police officer was called to enforce any traditional rule or law regarding public obscenity or lewdness.”

        Shouldn’t that make you happy? I thought you were against “giant, overpowering governments.”

      • Lles must be in a much more fun city. Over in New York, there were no naked people anywhere to be found in the streets.

        The nuns are even more whiny than Hobby Lobby. They also have the disadvantage of appealing a negative decision that frankly had better arguments than the ones in the Hobby Lobby case.

        • Go to youtube. Search for gay pride nude. You will be treated to a multitude of raunchy gay pride parades. It makes sense. Since sex is the only distinguishing feature of homosexuality,what else would their parade be about? You will be treated to nude people, almost nude people, people simulating sex acts or engaging in things that strongly suggest sex acts. People flashing other people, people in sado masochistic gear etc etc. IN some of the videos that don’t show nudity, you can tell they had to edit them so that they could show them on youtube.

          • Youtube is hardly a reliable source. You don’t necessarily know where or when the vids were taken or whether they are what they claim to depict.

            Its bullcrap stereotype slinging on his part since he was saying he saw it last weekend. Probably not.

            Considering NYC has one of the largest “out” populations and Gay Pride Week attracts tourists to the city from all parts, it would have been noticed by someone.

            Of course ignorant bigots fail to note that recently such events now have a host of events for children, since gay couples marrying and raising children is fast becoming more visible. I couldn’t pick up a local paper without seeing the announcements for the. Gay Pride events have taken a turn towards the conservative. Almost stately.

    • You don’t seem to understand anything at all about the decision.

      Congress passed a law called RFRA. It said that when the governemnt tries to force people to abandon their religious beliefs and force them to do something their religion says not to do, then the government must show that it has a compellling interest in doing so.

      Bill Clinton signed the law. Joe Biden sponsored the law.

      It passed with overwhelming support in both houses.

      So no, the supreme court is not doing this, Congress did this.

      • RFRA should never have been applied to a corporation. It defies the very concept of incorporation. That was the mistake of the decision. A corporation logically cannot have religious beliefs. Certainly nothing imputed by its owner(s), even if closely held or family run.

        You talk of forcing people. You mean speak as if you mean actual live people, not legal fictional people like a corporation. RFRA was abused in this instance. A law which really meant to protect employees is being used to justify bullying by employers.

    • So where do your rules come from? They come from someone. Which philosophers, social scientists, or other thinkers contributed to your understanding of what is good, and true, and beautiful? Name them please. Certainly you know.

    • Your concept of freedom is pretty screwed up.
      1. You are free to work elsewhere if you don’t care for your employer.
      2. How do you equate coercing a private citizen into providing you a product against his will with “freedom”?
      3. Where did you get the idea that you have a “right to be free from religion” in your interactions with private citizens who have religious beliefs. Certainly not from the Constitution or from any aspect of American history.
      And as to your last statement, how is it that “Republicans” are “telling women what they can do with their bodies” in this instance?
      Your “arguments” are completely devoid of any intellectual coherence.

      • 1. At will employment doesn’t mean a company can violate laws and regulations which affect it.

        2. A corporation is not a private citizen. (This is why the arguments for Hobby Lobby are so mind numbingly stupid)

        3. The first amendment and anti discrimination laws. Your religious beliefs are not an excuse to force others to act. You have no clue what religious freedom is. To Christians it is considered license to attack others and ignore laws.

        • Who is forcing whom to do something? Wake up. It is the leftist thugs forcing religious people to do something, violate their consciences. People should not be forced to buy anything for other people, much less immoral drugs. Christians aren’t forcing anyone to do anything. We just want to be left alone to live our Faith. Buy your own contraceptives! No one is stopping anyone from using them. I don’t see the government forcing you to pay for my actual medications, you know, those things that people take for actual health reasons, not just stuff so they can sleaze around like animals.

          You leftists are immoral and irrational.

          • Your whole argument is based on omitting important points to make ignorant statements that really do not apply.

            Violate their conscience to coerce others into your religious views?
            Somehow that doesn’t fall under the free exercise of religion.

            As I said in my second point, a corporation is only a person in a limited sense. Ignoring that point is what makes your argument so stupid. The idea of imputing religious beliefs to a company flies in the face of what incorporation is for and means. It also reduces religious belief to an arbitrary stamp to something which exists purely as a pile of papers filed with a Department of State in the state of incorporation.

            An employer has no business delving into the private matters of how employees chose to utilize the health care compensation they earned working for the company. It is not an employer just paying it as a gift. It is not entirely subject to an employer’s whim. Insurance is government regulated and tightly controlled. If an employer does not want their workers to use birth control, tough luck. It is not their decision. An employer must respect the private decisions once the compensation is paid out.

            “Christians aren’t forcing anyone to do anything. We just want to be left alone to live our Faith”

            Liar. You want the ability to force people under your direct control to live according to your faith. Whether they want to or not. People like yourself only think they are moral. There is nothing moral about willful ignorance, dishonesty and extolling coercion. But that is what your God wants. Jeez.

    • “How are Republican Christians any different from crazy lunatic Islam?”

      Well, for one thing, they aren’t hacking people’s heads off or crucifying them. They aren’t raping wives and daughters in front of husbands/fathers when husbands and fathers can’t pay the jizya. They aren’t videotaping hacking off people’s hands. They aren’t flying planes into buildings. They aren’t imprisoning women for being married to non-Christians and forcing them to give birth while shackled to the floor as the woman awaits execution following lashings. They aren’t kidnapping hundreds of young girls to sell into slavery/forced marriages? Shall I go on? Moron….

  3. Deacon John M. Bresnahan

    The Supreme Court has the habit of not only reading the U.S. Constitution to make its decisions (although sometimes it is hard to figure out their reasoning and that they really did consult that document).
    But they also don’t usually want to look foolish or appear bizarre.
    Now nothing appears more bizarre than whacking a bunch of old celibate nuns on reproductive issues while ignoring the First Amendment and giving more religious protection to business entities.
    I don’t think they want to look bizarre so I think they will find a way to extricate the nuns from Obama tyranny.

    • They read it, but at least 4 justices find new and interesting ways to contort it in order to reach a desired conservative partisan result. The intellectual dishonesty which comes from Scalia, Alito, Roberts and Thomas is of a kind previously unseen since the late 19th Century.

  4. “The key difference is that the Health and Human Services Department (HHS) has already offered an accommodation to faith-based nonprofits that allows them to sign a waiver giving a third-party administrator permission to take care of the birth control coverage, with no further involvement by the religious group”

    Requiring the signature of a waver giving a third-party permission to take care of birth control coverage, is forcing tacit agreement. not much different than requiring Christians to burn a speck of incense to a pagan image.

    “Viva Cristo Rey!!”
    DHS

  5. So, SCOTUS is basically asking non-profits like the Little Sisters to provide their own “prescription” for abortion, sterilization and BC, by REFERRING those services for their employ to a third party. Hmm, US Gov’t . . . don’t pick a fight you can’t possibly win. It’s been tried by the evil one from the beginning of time and, each time, without no cost to life and limb, he loses. Now, his legion of democrat party drones are poised to lose all, again. Pop the corn and watch as the Rightful King to the throne takes control and shoves this evil into oblivion.

    • The nuns are given the opportunity not to make a decision for coverage, to not pay for contraception and let their employees make that choice for themselves.

      But being Christian nosybodies, the nuns want to have the right to dictate to their employees whether such options should even exist. Being a Christian means never respecting the choices other people make or understanding what privacy means.

  6. I personally agree with the HL judgement. But here is another solution…stop offering insurance across the board or have everyone work part time the way Walmart does and restaurants do. Push people to leave their religious believes and you will have only trouble.

    • And an even easier way to deny coverage to people who oppose the liberal ideology, not to mention even swifter decisions from the death panels.
      It’s all about euthanasia, IMHO.

  7. Well, than Catholic institutions will have to circle the wagons and only serve and employ faithful Catholics. I believe then they would be considered immune from this ‘mark of the beast.’ I see it as a win.

  8. The goverment shouldn’t be in the business of telling people how to practiced their religion. HHS mandate has self-appointed and ordained itself a priest, penance, and absolution…a “papacy” of politics and intellectual atheism: “oh, poor nuns and religious organization you’re not sinning!”
    to advise, assist, fund, provide
    means of referral for the procurement of abortion and contraception (killing conceive embryos)…just sign a waiver and provide the funds allowing your employees to use your religious resources and vocations to hire a hit
    man…to implement the HHS
    mandate for you. That is so stupid…that like mandating the employers must offer and serve pork dinners to its employee(s). what’s wrong with lean white meat? Nothing unless your are jewish, muslim, or vegetarian organization. Religion freedom and the employee’s religious conscience need to be protected. Politics and political systems cannot be permitted to upsurp the theological foundations of
    faith. To do so would make our founding fathers and their constitution looney, leaving England was a waste of time because hundreds of years later america will have a self-appointed goverment as head of every church mandating discretions defining
    religion…to accept the flaws of HHS we would also have send the Queen Mother and fallen british brethern an apology…we americans was a wrong, rebellious colony and it just took us hundreds of years to realize it. So, how would we make amends by returning to commonwealth
    and becoming british
    anglicans with royal quartering any opposition and dictating the its interests as the conscience and beliefs of the
    people…being that said…I can’t see how any justice could sensibly ruled against the nuns…it would be balantly foolish…

    • That’s all well and good, but corporations are only people in the most tenuous legal sense. The overwhelming majority of arguments in favor of Hobby Lobby stupidly mistake the company for the individual owners. The distinction is real and material to the issues here.

      The idea of imputing religious belief to a corporation is beyond ridiculous. Even the Court could barely swallow what they were saying in this regard. So they made an arbitrary limitation that it only has to do with “closely held, family run corporations” as if such distinctions ever had real meaning when it comes to rules of incorporation and treatment under the law.

      What it comes down to is the choice to use birth control or even an abortion (which ACA does not mandate, way to continue an outright lie) lies solely in the hands of the person who wants the procedure. It is not up to an employer to make such decisions. Healthcare coverage is compensation for work rendered. It is not a gift, the care available has no business being subject to the arbitrary whims of an employer. It is a private manner.

      Christians obviously do not believe people should make their own decisions and always seem to use coercion to get their way. Since obviously they have little chance of influencing behavior by setting a good example to others.

      Religious freedom does not mean you get to dictate to other people nor does it consider faith to be so inviolate that any laws can be ignored if you say “God tells me to”.

      • Larry, have you never met a kind and loving Christian? None that have let you make your own decisions? All using only coercion to get their way? Your antipathy is so broad that it undermines your own idealogy.

        Insurance is called a benefit, not compensation. While tightly regulated, you do not get to call it compensation. It has no cash value to the employee.

        • Not among those who feel they have a god given duty to make decisions for the lives of others.

          Certainly not among those who ignore arguments in favor of trying to paint an opposing view as some kind of personal affliction.

          The whole “atheists must be angry cranks” nonsense trotted out by flustered Christians is offensive, tiresome passive aggressive nonsense. Certainly not the words of a loving Christian. Merely those of a smug hostile person lost for a sensible response.

          Benefits are compensation for work. You only earn them as employees and as a condition of employment. It is not a gift. Calling it a benefit does not change its nature. Something an employee has to work to use. It’s not cash, but it is compensation. You really are ignorant of important facts.

          The entire pro HL argument is dependent on dishonest representations of facts, glaring omissions and not thinking very hard about a situation. If you work for a company and support this kind of action, you are fool undermining your own rights.

  1. […] It was not a Freedom of Religion show down. It does not apply to all kinds of conscience exceptions. It did not even consider whether or not abortion and contraception were, in fact, health care. Lastly, the decision does not address the worthiness of the Obama Administration’s “exception” for religious organizations which still forces them to provide objectionable services, although not pay for them directly. These are battles yet to come. Here is a good analysis of where we are and where we might go in the near future: http://www.religionnews.com/2014/07/01/analysis-hobby-lobby-beat-contraception-mandate-heres-nuns-ma… […]

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