Sotomayor to Wheaton’s Religious Beliefs: Drop Dead

by Jonathan Keim

I’m finally reviewing the Supreme Court’s order granting Wheaton College an injunction against the government, which relieves the Christian college from the obligation of filing an HHS-mandated form instructing the college’s third-party administrator to provide emergency contraceptives under the college’s insurance plan. (Ed Whelan has previously discussed the case here.)

As Justice Sotomayor’s dissent recognizes, Wheaton believes that filling out HHS’s Form 700, which instructs its third-party administrator to provide all of the regulation-ordered contraceptives, makes it complicit in potentially killing a human being. (Several of the required contraceptives may prevent implantation of a fertilized egg, thus causing the death of a human embryo.) This is Wheaton’s religious belief, and Justice Sotomayor doesn’t question the college’s sincerity or beliefs, at least not in those terms.

Instead she does it in a more roundabout way. For instance, Justice Sotomayor says that complicity in taking a human life is not a “substantial burden” within the meaning of RFRA with these familiar introductory words (link added, of course): 

Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so. 

But as Justice Sotomayor recognizes, Wheaton thinks that by filling out the form and instructing its administrator to provide the potential abortifacients, it will be committing a “grave moral evil.” One imagines that whatever the technical standard for “substantial burden,” complicity with unjustified homicide would fit within it.

Onward and upward, goes the dissent, declaring that “Wheaton’s complicity theory cannot be legally sound.” It then goes on to quote a particularly egregious passage from Judge Richard Posner’s decision in the Notre Dame contraceptive mandate case that second-guesses the moral reasoning of a Quaker who objects to armed service. (If you have not had a chance to read Judge Posner’s shining example of how not to think about religious freedom, you can read more about it here.)

But wait a minute – why is Justice Sotomayor (or Judge Posner, for that matter) delving into the significance of hypothetical chains of causation? One might expect that it’s unintentional. Not so, as it turns out: “The filing of the self-certification form merely indicates to the third-party administrator that a religious nonprofit has chosen to invoke the religious accommodation” (emphasis added). “Merely” is the key word: The dissent is downplaying the moral significance of filling out the form, even when that’s exactly what courts must not do when the religious belief is sincere.

The fault line clearly marks a disturbing substantive disagreement about how religious liberty is supposed to work. Like Judge Posner, Justice Sotomayor and the two other dissenters find it irresistible to second-guess the religious beliefs of the litigants before them. And that’s a problem.

[UPDATE 3:32 P.M.: Eugene Volokh discusses this issue in an excellent, highly detailed blog post here.]