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January 9, 2014

Little Sisters and Big Brother

The First Amendment is still taking a pounding by the Obama administration.

The First Amendment to the U.S. Constitution states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Both pieces of this statement – the so-called “Establishment Clause” and the “Free Exercise Clause” – were originally crafted as two sides of the same coin. The idea was that the federal government could not establish a “national religion,” nor could a federal law bar a citizen from worshipping in a manner he/she deemed fit.

Though the idea behind the “Religion Clauses” is simple enough – keeping government out of the religion business, as opposed to the Left’s preference of keeping religious citizens out of the government’s business – over the past 65 years the Free Exercise clause has slowly but steadily taken a back seat to the Establishment Clause. The upshot has been that if anything smacks of Christianity, it can have no part of a governmental rule, even if the result is to trample a person’s free exercise of religion.

Enter the Little Sisters of the Poor, a charitable organization of nuns who exercise their Catholic faith by caring for the elderly and terminally ill in nursing homes and hospices around the country. Under ObamaCare rules taking effect in 2014, all employer health plans must provide contraception coverage or else pay a hefty tax fine. For the Little Sisters, that penalty amounts to an eye-popping $2.5 million. To qualify for an exemption to these rules – a so-called “accommodation” – religious organizations must sign a statement certifying that, “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.” This charade allegedly lets the organization off the hook for providing such coverage but only by shifting that responsibility to a third party. The Little Sisters rightfully claim that such an “accommodation” simply puts them in the worse position of forcing someone else to pay for something Little Sisters objects to on religious grounds.

Attacking this claim, the Obama Justice Department sought to block a temporary injunction to enforcement of the rule. The injunction was nonetheless granted by none other than Supreme Court Justice Sonia Sotomayor. The Justice Department’s counter is that the third-party organization that would have borne the responsibility of paying for contraceptives and abortifacients itself qualifies for an accommodation, too, since Little Sisters is insured under a church plan, also run by a Christian order. As Solicitor General Donald Verrilli argued, since everyone is effectively “off the hook,” Little Sisters has no basis for its claim. Of course, the Obama administration has already promised to close this particular loophole in future rulemaking, but we digress.

However, Little Sisters’ argument is that independent of whether the insurer is itself exempt, by signing the accommodation statement Little Sisters effectively endorses the insurer to fund things that are repugnant to Little Sisters and its members. That the insurer chooses not to fund these activities is a far cry from the Constitution’s guarantee that the Little Sisters can freely exercise their religious beliefs. But the real issue here is whether the state’s interest in enforcing a law that violates an individual’s – or, as here, an assembly of individuals’ – deeply held religious convictions is sufficient to abridge a constitutional guarantee. The Constitution is abundantly clear on this answer: “No.” Unfortunately, however, for the current statist regime the answer is, “Yes, absolutely.”

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