The Becket Fund, not the Little Sisters, Lose

by Michael Sean Winters

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A three-judge panel for the 10th Circuit Court of Appeals ruled against the Little Sisters of the Poor, and other plaintiffs, in the latest court proceeding regarding the HHS contraception mandate. The cases seem destined to go to the Supreme Court which will have to sort out the competing claims.

When the Obama administration first announced the mandate, I was vehemently opposed. It made no allowance for Catholic institutions, other than churches themselves, to decline to participate in the provision of contraceptives, the use of which is not consistent with Church teaching. The exemption for churches proper shows that at least someone in the administration was aware of the First Amendment’s free exercise clause. But, for us Catholics, ministries like that of the Little Sisters of the Poor, or our universities, or our other charitable efforts, are just as much as part of “the Church” as are our places of worship. It was especially galling that an administration dedicated to liberalism was more interested in taking marching orders from Emily’s List than in upholding the rich, and important, traditions of religious toleration that have characterized our nation’s political life.

After a firestorm broke out, the administration issued a change to the rule, introducing an accommodation for religious organizations. I remained unhappy with this accommodation because it continued to draw a distinction between our churches proper and our charitable and educational institutions. Supporters of the accommodation noted, rightly, that our charitable institutions were already treated differently from our churches, for example, depending on their size and circumstance, these charitable institutions filed 990s with the Internal Revenue Service. But, this was the first time that such distinctions, understandable in terms of tax law, were used as the basis for defining who did, and who did not, qualify for a religious exemption. To my mind, it was worth a lawsuit to try and frustrate such a distinction being drawn.

Unfortunately, those lawsuits were turned over to the professional religious liberty legal clique. And, they have not based their arguments on the artificiality of the distinction between a worship ministry and a charitable or educational ministry. They have argued that compliance with the mandate, even under the terms of the accommodation, amounted to a substantial burden on their conscience, that the accommodation forced them to participate in something they believe is morally objectionable, and that filling out the form to let the government know the organization wanted no part in this mandate was itself the “trigger” that activated the objectionable coverage.

The 10th Circuit rejected this reasoning in very clear terms, writing:

We conclude the accommodation does not substantially burden Plaintiffs’ religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious exercise for the purposes of RFRA.

And, later in the decision, focusing on the issue of self-insured religious organizations, they court states:

In making this argument, the dissent focuses almost exclusively on whether the plaintiffs’ opt out is a but-for cause of the TPAs’ authority to provide contraceptive coverage. It does, but this approach misses the mark. Although opting out is necessarily a but-for cause of someone else—the TPA—providing contraceptive coverage, that is the point of an accommodation—shifting a responsibility from an objector to a non-objector. That is how a legislative policy choice—here, to afford women contraceptive coverage—can be reconciled with religious objections to that policy.

I confess I find nothing wrong with the court’s reasoning here. If you think the form used to object to participation is itself a form of participation, I am not sure how we, as a nation, can ever carve out religious exemptions. The logic of the Becket Fund arguments is the kind of logic you get from single-issue advocacy groups who only talk with the like-minded. It is screwy, only making sense if you accept a bunch of questionable predicates which, to the rest of the world, are far from self-evident.

Consider this statement from Becket Fund lawyer Mark Rienzi:

We’re disappointed with today’s decision. After losing repeatedly at the Supreme Court, the government continues its unrelenting pursuit of the Little Sisters of the Poor. It is a national embarrassment that the world’s most powerful government insists that, instead of providing contraceptives through its own existing exchanges and programs, it must crush the Little Sisters’ faith and force them to participate. Untold millions of people have managed to get contraceptives without involving nuns, and there is no reason the government cannot run its programs without hijacking the Little Sisters and their health plan.

A bit over-the-top, don’t ya think? “Crush the Little Sisters’ faith”? I am pretty sure the Little Sisters' faith cannot be so easily crushed. Rienzi is not, here, defending the rights of conscience. He is playing for the cameras. Will not someone in authority in the Church tell the Little Sisters that they can fill out the form with a clear conscience? Will not our bishops finally stand up and say that the Becket Fund does not really grasp the nuances of moral theology regarding illicit material cooperation with evil? I know that every advocacy group goes shopping for the perfect plaintiff, and the Little Sisters are the perfect plaintiff. But, they are being used, and used badly by this religious liberty campaign.

That said, we should be glad that there is a Becket Fund because the anti-Church folk certainly have their advocacy groups, which also end up adopting skewed perspectives, but that does not mean they would not triumph if unanswered. But, the bishops of the United States should not turn over the keys to the kingdom to the Becket Fund. The lawyers are making a case which, like it or not, is forming our Catholic people’s understanding of conscience, cooperation, and other moral teachings and, last time I checked, it was the bishops, not the Becket Fund, who are charged with passing on the deposit of faith according to the teachings of the Second Vatican Council. Let the Becket Fund rummage around the jurisprudence, but don’t let them define prudence. Certainly, they should not be permitted to disturb the conscience of the Little Sisters for one minute longer. 

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