Lawyers should always listen to what judges say. Believing it, though, is often a mistake.
Take these words: “This order should not be construed as an expression of the Court’s views on the merits.” It’s the last sentence of the Court’s order, issued Friday, in Little Sisters of the Poor v. Sebelius, a religious order's challenge to a portion of the Affordable Care Act dealing with contraception.
Formally, the words are true. The Court hasn’t voted on the issue, and technically may not ever end up hearing it. So thing for a lawyer to say is, “Thank you, Your Honor.”
The correct thing to think, however, echoes George Orwell: “There are ... about eighty ways in the English and American languages of expressing incredulity—for example, garn, come off it, you bet, sez you, oh yeah, not half, I don’t think, less of it or and the pudding! But I think and then you wake up is the exactly suitable answer.”
As Cornell Professor Michael Dorf explains, the Court’s grant of a stay to Little Sisters “suggests that, at least at this stage of the litigation, the plaintiffs have made out a colorable claim.” The nature of that claim offers a glimpse of some toxic ideas floating around in American law.
What do the nuns object to? As Lyle Deniston of SCOTUSblog explains, they object to the simple act of asking for a religious exemption to providing their lay employees with insurance coverage for contraceptive services. “The Little Sisters told the Supreme Court that even filing that form would make them a part of the scheme, and thus draw them into support for abortions or abortion-related services,” Deniston writes.
The Little Sisters object to filling out the form even though they are a “church plan.” This means, as the government noted in its brief, their employees won’t get contraceptive care no matter what form they fill out. The third party running their health plan will be “under no legal obligation to provide the coverage after applicants certify that they object to providing it.”
In other words, the Little Sisters want to be exempt from even telling the government that they are exempt from a plan that, in any case, would not require them to do anything they object to doing. Couple that with the pending claim by Hobby Lobby Stores that a for-profit corporation has a “free exercise” right to block its employees from being compensated for contraceptive methods their employers object to. Sebelius v. Hobby Lobby Stores, Inc., which will be argued on March 25, was brought by corporations owning two retail chains. The stock is held by a conservative Christian family, the Greens, who believe that destroying a fertilized egg is the equivalent of killing a living person. The corporations demand exemption from the Affordable Care Act’s requirement that employee health insurance policies cover a full range of contraceptive options. The corporations are for-profit businesses that employee 13,000 people. They are being regulated as part of a general regulation of commerce. But their owners don’t want to take part. Who is mere government to ask them to do so?
Taken together, these two cases aren’t claims for religious exemption. They are more like an ordinance of secession—a statement that religious bodies, and people, and even commercial businesses, no longer belong to society if they decide they’d rather not. The idea depends on an assumption that government itself is sinful, and presumptively illegitimate. If courts follow this notion, they risk making it impossible to have an effective government at all. And ineffective or weak government, as Peter Shane explained here a few weeks ago, was no part of the Founders’ vision for America.
Nor is there any warrant in our history for blanket religious exemptions from social norms. Consider conscientious objection. When the people’s representatives decide the nation is in danger, citizens may be asked give up their liberty and, if necessary, their lives to defend it. But in the United States, at least since World War I, religious people who object to war have been permitted to refuse to bear arms in their country’s defense.
What they get, though, is not immunity. Instead, they have been required to certify their religious objection and, if necessary, prove that it is sincere. Then they have been required to perform alternate service—working in a hospital, for example, or in a national park—to aid the nation’s survival in ways that do not involve personally killing. It is a compromise between conscience and the collective.