Hobby Lobby in narrow win; Little Sisters of the Poor on deck

So why are the Little Sisters of the Poor at the top of this post as the tsunami of Hobby Lobby coverage continues? Hang on.

So far, the mainstream press coverage of today’s U.S. Supreme Court decision (.pdf here) has been rather good. In particular, there has been a shockingly low rate of scare quotes around terms such as “religious liberty” and “religious freedom,” almost certainly because this case — in the eyes of the 5-4 majority — pivoted on issues linked to the Religious Freedom Restoration Act, a major 1993 win for the old church-state liberalism of the past (RIP).

However, note the very interesting scare quotes in the following reaction statement from Archbishop Joseph E. Kurtz of Louisville, president of the U.S. Conference of Catholic Bishops, and Archbishop William E. Lori of Baltimore, chair of the bishops’ committee for Religious Liberty.

“We welcome the Supreme Court’s decision to recognize that Americans can continue to follow their faith when they run a family business. In this case, justice has prevailed, with the Court respecting the rights of the Green and Hahn families to continue to abide by their faith in how they seek their livelihood, without facing devastating fines. Now is the time to redouble our efforts to build a culture that fully respects religious freedom.

“The Court clearly did not decide whether the so-called ‘accommodation’ violates RFRA when applied to our charities, hospitals and schools, so many of which have challenged it as a burden on their religious exercise. We continue to hope that these great ministries of service, like the Little Sisters of the Poor and so many others, will prevail in their cases as well.”

The key word is, of course, “accommodation.” In other words, the court did not deal with the Little Sisters of the Poor and appears to have left a door open for the White House to ask Hobby Lobby and other family-owned corporations to settle for the same “accommodation” it has offered to doctrinally defined religious non-profits, ministries and schools. The basic idea is that religious believers will not have to pay for services that they believe are damnable and heretical because the government will ask their insurance providers to provide these services for free (without quietly raising the rates to cover the cost).

I think major news organizations did fine with Hobby Lobby details, in part, because it was seen primarily as an extension of the whole “corporations are people too” political battles of recent years. Thus, the family-owned corporations have religious liberty rights, while massive impersonal corporations (none of which have sought exemptions) have not.

What about the doctrinally defined non-profits, the second level of this church-state fight that many journalists tend to miss?

Remember that New York Times report in 2013 noting that the White House has “excluded many religious organizations from the law’s requirements”? As I wrote at the time:

The key word in that passage is “many,” as in the statement that the Obama White House has “excluded many religious organizations from the law’s requirements.” The implication — an accurate one — is that there are many religious organizations that have not been excluded from the law’s requirements.

The Times story will lead most readers to assume that this is a conflict with two levels — for-profit groups (status unknown) vs. non-profit religious organizations (already protected). The reality in the HHS mandate is more complex than that, drawing a line between religious groups that are protected by a freedom of “worship” and those that no longer enjoy a full protection in the name of religious liberty.

So what happened in today’s report from the College of Cardinals at the Times? You can feel the conflict right in the lede:

The Supreme Court ruled on Monday that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom. It was, the dissent said, “a decision of startling breadth.”

The 5-to-4 ruling, which applied to two companies owned by Christian families, opened the door to challenges from other corporations over laws that they claim violate their religious liberty.

The “startling breadth” reference is interesting, since the modern world is not dominated by conservative family-owned corporations. Still, many readers in the Times reader silo will certainly find it appropriate to put the dissent right in the lede, ahead of any quotes from the majority opinion.

And what about the Little Sisters of the Poor? Actually, the Times team notes that it was Justice Samuel A. Alito Jr. who brought up the “accommodation” option.

Justice Alito said he accepted for the sake of argument that the government had a compelling interest in making sure women have access to contraception. But he said there were ways of doing that without violating the companies’ religious rights.

The government could pay for the coverage, he said. Or it could employ the accommodation already in use for certain nonprofit religious organizations, one requiring insurance companies to provide the coverage. The majority did not go so far as to endorse the accommodation.

And later:

A federal judge has estimated that a third of Americans are not subject to the requirement that their employers provide coverage for contraceptives. Small employers need not offer health coverage at all; religious employers like churches are exempt; religiously affiliated groups may claim an exemption; and some insurance plans that had not previously offered the coverage are grandfathered in.

And what about that exemption option? Are doctrinally defined ministries, non-profits and schools happy with that? The Washington Post did mention, sort of, that bitterly contested issue:

He said government could simply provide the service itself. Or it could give such businesses an accommodation like the one provided for religious-oriented, not-for-profit corporations (which is also under legal challenge). Those groups can certify their objections and have the group insurer or third-party administrator take on the responsibility of paying for the birth control.

I will continue to watch the coverage, as always focusing on the most intense religious themes in the debate. In particular, I would be interested in knowing if GetReligion readers noticed any mainstream reports that quoted the following shot from the court majority at some of the logic of the dissent. The logic there:

… (D)odges 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 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.

In other words, at what point does the government have a right to entangle itself in the doctrines embraced embraced by believers and then followed in public life? What can the state say that a doctrine is false?

Stay tuned.

FOR MORE INFO: A Religion Link feature from the Religion Newswriters Association focusing on this case. Note the interesting reference that “Religious freedom has become the broad catchphrase at the heart of today’s biggest culture war issues.” The First Amendment is now a catchphrase?

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About tmatt

Terry Mattingly directs the Washington Journalism Center at the Council for Christian Colleges and Universities. He writes a weekly column for the Universal Syndicate.

  • Daniel Merriman

    Lots of technical issues in the cases like Little Sisters of the Poor. I suspect that the requirement that these religiously affiliated groups provide notice to their insurance carriers might be modified so that notice is given directly to HHS– which is the exact temporary relief the Supreme Court ordered in the Little Sisters case. Hard to see an objection to that being upheld, though I’m sure some of the groups involved won’t like it. (If you are a Quaker and don’t want to be drafted, you have to fill out some paperwork). As far as I can see, the cases in the pipeline can be resolved by normal principles of statutory construction and administrative law, but the culture war rhetoric on both sides will make it seem like Armageddon.

    There was an issue lurking around the fringes of Hobby Lobby that was implicity decided. RFRA had previously been ruled unconstitutional as it applied to the states. (Thus the plethora of state RFRA statutes). There was a credible amicus brief filed that invited the Court to declare the remainder of the act unconstitutional. It declined.

    • fredx2

      No, providing notice to the HHS still fails if they know the HHS then will use that to provide contraceptives to employees It’s obviously a ruse in place of notifying the company itself. The rule is: the sisters cannot be complicit in the provision of contraceptives to employees – in any way.

      As to the Quaker analogy – The difference is that the Quaker does not object to filling out paperwork, because filling out paperwork does not involve him in engaging in war. For the Sisters however, filling out the paperwork means they ARE complicit in contraceptives being provided. The proper hypothetical is forcing the Quaker to sign a paper that authorizes the government to select another man in his place. In that case, the Quaker would properly refuse because he does not want to be complicit in the making of war – period.

      Personally, i don’t think anything filed by Marci Hamilton can be called “credible”- she is the worst type of activist professor – the kind that degrades the name of professor. As to her book Douglas Laycock – a serious constitutional law scholar – said “Occasional errors are inevitable, but here the extraordinary number of errors, often with reference to famous cases and basic doctrines, implies a reckless disregard for truth. I document these errors for a reason. No one should cite this book. No one should rely on it for any purpose …
      Its many footnotes offer the patina of scholarship, but there is no substance of scholarship. This book is unworthy of the Cambridge University Press and the Benjamin N. Cardozo School of Law.”

      Law professors almost never, ever say such things. Even when they violently disagree, they couch it in pleasant, neutral terms. Her book is so substandard that it caused that reaction. Having read her book, I wholeheartedly agree with Laycock – I was scandalized by the nonsense that was put forth, and utterly shocked that it could come from a professor.

      The court really addressed her concern yesterday this way – basically saying “our previous decisions said that the Constitution itself did not require the government to show a compelling interest before interfering with people’s religious freedom. However, now a statute has been passed (RFRA) that does require that balancing test. “

      • Daniel Merriman

        In its Order in the Little Sisters case back in January, the Supreme Court ordered that the required notice be provided to HHS instead of the insurance carrier. In the event that this case remains a lead case (I think there are serious issues unique to Little Sisters because their carrier is a “Church Plan” under ERISA that does not provide for birth control coverage and can’t be required to do so), I think that will be the final result. Kennedy’s opinion in HL signals as much. I know that some won’t like that result for reasons you set out, but I can’t think of any exemption that is available under the law that you don’t have to undertake some affirmative act to claim. By filling out papers, it could be argued that the Quaker contributes to the efficient operation of the war machine, so I really don’t see your distinction, but keep in mind that the ACA is a tax law, and tax law is replete with exemptions that the taxpayer has to act affirmatively to claim.

        Stop the presses– Doug Laycock doesn’t like Marci Hamilton!!!! I haven’t read her book, but I did read the amicus brief. I don’t agree with it, but it is a reasonable question to ask if RFRA passes constitutional muster under the separation of powers doctrine. Justice Stevens raised that issue at some point in the past, and where I come from any issue raised by a Supreme Court Justice is worthy of being addressed. Whatever I think of the lawyer is beside the point.

  • Reformed Catholic

    I really wish that some reporting would cover the fact that prior to the Affordable Care Act, anyone who wanted contraceptives for free just had to head to a Planned Parenthood office and request them.