Friday, January 24, 2014

Justice Sotomayor's Protection of Religious Liberty

 Protecting Religious Liberty (Again)

Would Agree
In a recent order, Justice Sonia Sotomayor temporarily enjoined application of certain regulations issued by the Obama Administration to implement the so-called Affordable Care Act.  The regulations in question would require the Little Sisters of the Poor and similar organizations to pay massive fines or authorize their insurance carriers to provide free contraception to their female employees.  (There is apparently no similar requirement that employers provide contraception to male employees.)  In a brief filed with Justice Sotomayor, the Little Sisters explained that the organization's insurance carrier is itself a Catholic organization and that the regulations at issue would impose annual fines of $2.5 million on "an organization that cares for 69 elderly people and has an annual budget of $6 million."  (Lyle Dennison, of SCOTUSBLOG, has additional details about the case here.)    The Sisters argued that the requirement in question violates the Religious Freedom Restoration Act, which prohibits agencies of the U.S. Government from issuing regulations that place substantial burdens on the free exercise of  religious belief unless such burdens are narrowly tailored to serve a compelling state interest.
In a U.S. New and World Report blog post entitled "The Catholic Supreme Court's War on Women," one Jaimie Stiehm  claims that Justice Sotomayor's order imposed her Catholic beliefs on American women.  In particular, the post claims that  "Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence."  The post also opined that "Sotomayor's blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions."  The post also suggests that Justice Sotomayor has allied herself with other Catholic Justices who, the post says, possess a "clear religious bias when it comes to women's rights and liberties," that the result reflects "Vatican Hegemony."  The post also claims, without offering any evidence, that "meddlesome American Roman Catholic Archbishops are bound to be involved."  Such Archbishops, the post says, have a "penchant for control" whose  "principal target for years on end has been squelching women and girls."   
Any claim that Justice Sotomayor, the Sisters or Archbishops who may agree with the Sisters' position have thereby imposed their religious beliefs on others does not withstand even cursory analysis.  As noted above, the regulations at issue would require one Catholic organization to violate its religious beliefs by authorizing another Catholic organization to subsidize practices that violate such beliefs.  Justice Sotomayor's order simply prevented the Obama Administration from compelling the Sisters to violate their religion, thereby protecting the principle of religious liberty, recognized by RFRA, from abridgment.  RFRA, in turn, simply implemented the ancient Madisonian principle that each individual is free to determine the duty he or she owes to the Creator and that the discharge of this duty "is precedent, both in order of time and in degree of obligation, to the claims of Civil Society."  (See James Madison, Memorial and Remonstrance Against Religious Assessments)
Some employees of the Sisters may well wish to employ contraception.  However, neither RFRA, Justice Sotomayor's order or the Sisters have sought to prevent a single person from exercising that choice.  To be sure, the Sisters have declined to subsidize this practice, in the same way that employers fail to subsidize any number of practices. (Consider, for instance, the employer that declines to subsidize her employee's consumption of food or purchase of clothing or shelter.)  Moreover, Justice Sotomayor, applying RFRA, has prevented the Obama Administration from coercing the Sisters and other Catholic organizations to provide such subsidies.  However, as previously explained on this blog, declining to subsidize another's medical care does not "impose" one's beliefs on others simply because the refusal reflects the employer's religious beliefs.  Instead, such a refusal leaves the Sisters' employees entirely to free to purchase as much medical care of whatever sort that they wish. 
It should be noted that this is not the first time that Justice Sotomayor has rejected the Obama Administration's efforts to restrict religious freedom.   In Hosana Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ____ (2012), all nine Justices rejected the Obama Administration's claim that the Religion Clauses of the First Amendment do not prevent Congress from imposing ministers upon Churches against their will.  There Justice Sotomayor joined the majority opinion of Chief Justice Roberts which, among other things, criticized the Obama Administration's "remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers."   Any suggestion that Justice Sotomayor imposed her religious views in either case is equally remarkable --- and wrong.  

Update (January 28, 2014):  The Supreme Court, without recorded dissent, has itself issued an order enjoining enforcement of the statute's contraception mandate, pending resolution of the Sisters' challenge.  The order, which can be found here, provides that the Sisters and their religious insurance carrier need not comply with the new regulations, so long as they notify the Department of Health and Human services, in writing, that "they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."  The order expressly provides that the Sisters "need not use the form prescribed by the Government and need not send copies to third-party administrators."  As a result, the Sisters need not authorize their insurance carrier to provide coverage that violates the Sisters' religious belief.  Any supposed "War on Women," it seems, has become unanimous.