Getting embroiled in litigation with nuns usually isn’t an item anyone wants on his résumé.
This is a rule of thumb, though, that doesn’t apply to California attorney general Xavier Becerra, who went out of his way to target an exemption for the Little Sisters of the Poor. His litigation is still caught up in the courts even after it got rebuked by the U.S. Supreme Court last year.
Becerra, Joe Biden’s pick for Health and Human Services secretary, chose to pursue this litigation even though it is completely meritless; even though it would, if successful, punish nuns who simply want to carry out their calling to care for the indigent elderly; and even though only ideological zealots intolerant of moral views different from their own can take any pleasure in its continuation.
There will be a lot of material for Becerra’s opponents to work with during his confirmation hearing on Tuesday, but this litigation, on its own, should be disqualifying.
It is an act of performative illiberalism that should be rejected by all people of good will who want to live in a society where nuns — living out their faith — can give succor to the vulnerable without the federal government harassing them to violate their deeply held beliefs.
The roots of the Becerra litigation, of course, are in the contraception mandate imposed by Barack Obama’s HHS as part of Obamacare back in 2011.
HHS provided only a narrow exemption to the mandate, one that did not include the Little Sisters of the Poor.
The Little Sisters sought a broader exemption, then relief in the courts, with the indispensable Becket Fund for Religious Liberty providing representation. Under threat of ruinous fines, the Sisters got emergency protection from the Supreme Court in late 2013 and a more lasting injunction a month later, but they kept losing in lower courts.
The so-called accommodation that the Obama administration offered involved the nuns’ signing a form stating moral objections to the coverage, which would then be included on the organization’s health plan anyway.
In a unanimous May 2016 decision, the Supreme Court overturned the lower-court rulings against the nuns and said the government should be able to find a better arrangement.
When Donald Trump got elected, his administration set about issuing a more complete exemption. It resolved the issue in late 2017 with a rule that no longer forced the Sisters to participate in a scheme they considered immoral while providing contraception coverage under Title X to anyone who, as a result, might lack it.
And there the matter should have remained, after five years of litigation up and down the court system, with a resolution that harmed absolutely no one. But Xavier Becerra had different ideas.
How radical is his litigation? Let’s count the ways.
First, Becerra sued after the nuns had already been through the wringer and promised, a little like the groundhog seeing his shadow, several more years of litigation.
Second, the HHS exemption has nothing to do with California. Obamacare isn’t a California law, and HHS isn’t a California agency. There is no harm to California if the federal government decides it must provide an exemption to the nuns. Indeed, it is probably unprecedented for one sovereign jurisdiction to sue to prevent another sovereign jurisdiction from changing its own rules to protect religious liberty. In a word, this is crazy.
Third, what Becerra seeks is a crushing burden on the nuns. If they don’t sign onto an arrangement that they believe violates their faith, Becerra wants them, in keeping with the Obama mandate, to be subject to daily fines that would add up to tens of millions of dollars annually. And, remember, these aren’t “corporate polluters,” they aren’t insider traders, they aren’t tech giants; they are an order of nuns founded by a saint who begged in the streets of 18th-century France so she could carry out her charitable work.
Fourth, his suit lacks all merit. There was no reason to think that a mandate created by an executive agency also couldn’t have a carveout created by an executive agency. Plus, there was never any plausible claim of any harm — Becerra has not found one alleged victim, not one actual woman, who has been prevented from obtaining contraception because of the religious beliefs of the Little Sisters.
It is telling that the Supreme Court, at a time when it isn’t easy to get seven votes, ruled against this latest assault on religious liberty last July, 7–2 (the vehicle was a companion suit to California’s brought by Pennsylvania).
Still, Becerra hasn’t dropped his litigation, which is still ongoing, now on process grounds.
This is a disgrace. But it is incumbent on supporters of the Little Sisters to have a charitable attitude and allow for the possibility of redemption. All we should ask is that Becerra drop his litigation, apologize to the Little Sisters, withdraw his nomination, stay in California — and try to do better.