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Law & the Courts

Government Beats Little Sisters, For Now

The Tenth Circuit Court of Appeals ruled today that the Little Sisters of the Poor have to comply with the administration’s “HHS mandate” on contraceptives, as modified by its “accommodation” for religious non-profits. But the decision seems to directly contradict the Supreme Court’s Hobby Lobby ruling.

The ruling holds that the Little Sisters believe that complying with administration policy renders it complicit in immoral activity, that taking actions that make them complicit in immoral activity is itself immoral, and thus that they cannot take such actions consistent with their conscience. The Tenth Circuit has decided that the Little Sisters are wrong about their complicity.

The Supreme Court, in Hobby Lobbycould not have been clearer that this kind of reasoning is inconsistent with the Religious Freedom Restoration Act.

In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 13–354, pp. 31–34; post, at 22–23. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue.

This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, e.g., Smith, 494 U. S., at 887 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim”); Hernandez v. Commissioner, 490 U. S. 680, 699 (1989); Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 450 (1969). Moreover, in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981), we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. . . (footnotes omitted)

I’m not saying that the Tenth Circuit decision will be reversed; I long ago stopped believing that Supreme Court cases on highly charged social issues are decided on the legal merits. But the Tenth Circuit decision is hard to reconcile with Supreme Court precedent or our tradition of religious liberty, in which the government does not concern itself with judging the merits of religious beliefs.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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