The Corner

Law & the Courts

The ‘Class of Special Rights’ Called the First Amendment

Sister Loraine McGuire with Little Sisters of the Poor after the Supreme Court heard Zubik v. Burwell, an appeal demanding exemption from providing insurance covering contraception, in Washington, D.C., March 23, 2016. (Joshua Roberts/Reuters)

In a piece for the Washington Post’s Plum Line blog, opinion columnist Paul Waldman offers a few rather disorienting comments on yesterday’s Supreme Court decision in Little Sisters of the Poor v. Pennsylvania, et al.

The case dealt with whether the Trump administration had the authority to grant religious and moral exemptions to employers who object to covering contraceptives and abortion-inducing drugs in their health-insurance plans, as Obamacare’s HHS mandate requires. One such employer is the Little Sisters, a group of Catholic nuns who serve the elderly, sick, and dying poor.

In a 7-2 decision, the Court ruled in favor of the administration’s authority to grant those exemptions and thus, by extension, in favor of the religious and conscience rights of the Little Sisters.

Waldman observes that the ruling is evidence of “a conservative majority on the Supreme Court, one that is determined to create a class of special rights that in practice are enjoyed only by conservative Christians.” (Justices Kagan and Breyer will be thrilled, I’m sure, to hear of their new assignation.)

This “class of special rights” Waldman mentions is, of course, the religion clauses of the First Amendment, and conservative Christians continue showing up in court to claim its protections only because their fellow citizens and antagonistic government officials continue forcing them to do so.

Later on, after advocating the abolition of employer-based health-care coverage — something many conservatives would welcome — Waldman further reveals his ignorance. One benefit of removing employer-based coverage, he avers, would be that it “would deprive religious conservatives of the ability to keep suing over contraception, which gives them a focus for their endless cries of oppression and aggrievement.”

It is difficult to imagine how one could honestly believe that the Christian owners of Hobby Lobby, the University of Notre Dame, and the Little Sisters of the Poor were overjoyed to have spent nearly a decade in court fighting merely to preserve their right to practice their faith in the public square.


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