In the form of a non-decision, the Supreme Court has issued an opinion that is a clear, albeit qualified, victory for the Little Sisters of the Poor. Without ruling on whether the Department of Health and Human Services’ contraception mandate – under which the nuns were required to provide contraceptives as part of their employees’ health coverage — violates the Sisters’ religious-liberty rights, the Court unanimously vacated the decisions of the various courts of appeals and sent the case back to them.
The Court made clear that it was expressing no opinion about the legal merits of the Sisters’ case, but the opinion is an obvious rebuke to the Obama administration — and rightly so. The Obama administration has shown no compunction about using the full force of the federal government to coerce a group of nuns into violating their religious vows. But following oral arguments in March, the Court requested supplemental briefs from both parties addressing whether the government could provide contraception coverage without entangling religious nonprofits, and the government grudgingly admitted that it was possible. According to the Court, the “substantial clarification and refinement” of the parties’ positions suggests that a compromise satisfactory to both sides is possible.
If not for the government’s obstinacy, that would have been possible long ago. HHS had already exempted an enormous number of employers from the mandate, among them large corporations — Exxon, Pepsi, and Visa — and government entities, including New York City and the U.S. military. Tens of millions of American employees have insurance plans exempted from the mandate. Yet the Obama administration has insisted on foisting its fiat on nuns, archdioceses, Christian colleges, and the like.
NR EXPLAINER: The Little Sisters of the Poor at the Supreme Court
The liberals on the Court could have sanctioned this contemptible imposition. A 4–4 split would have left the lower courts’ rulings in place, and three of the four courts had ruled against the Little Sisters or their co-plaintiffs. The Court’s willingness to vacate those decisions suggests that, despite its left-leaning majority, this Court is not entirely hostile to religious liberty. This is, recall, largely the same Court that ruled unanimously against the Obama administration in Hosanna-Tabor when the federal government claimed for itself the power to determine who is and is not a “minister.”
It’s far from clear whether that would remain true were a fifth liberal justice confirmed to replace Antonin Scalia. Still, this Court has been willing to give religious-liberty arguments their due. The Little Sisters’ fight is not over, but this latest development is a promising step.