Some judges don’t just practice law, they are also Talmudic scholars — better capable of determining matters of conscience than adherents of the religion itself.
The Little Sisters of the Poor in Denver sued to avoid complying with Obamacare’s mandate that all insurance provide contraceptives and refused to comply with the so-called opt-out contract in which their insurer is required to cover birth control for free. They essentially argued that signing the contract made them complicit in a sinful act.
The 10th U.S. Circuit Court of Appeals ruled this week: “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 (Religious Freedom Restoration Act).”
The Little Sisters’ consciences and souls are of no consequence.
Mark Rienzi, the lead attorney for the Little Sisters of the Poor, said in a statement: “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.”
If they refuse to sign the opt-out contract, each of their shelters is subject to fines of $2.5 million a year. That’ll really make them poor.
“In other words, the Little Sisters believe they are commissioning a moral transgression,” a Wall Street Journal observes in an editorial under the headline, “Big Brother of the Poor.” “The Tenth Circuit is telling them, no, the opt out is ‘unremarkable.’ Yet standard judicial practice is to refrain from reaching unresolvable questions of theology or ethics, and RFRA was written to give the benefit of the doubt to the faithful.”
In Burwell v. Hobby Lobby the Supreme Court observed: “The Hahns and Greens believe that providing the coverage demanded by the HHS (Health and Human Services) 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 a 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.”
This case is surely headed to the Supreme Court where it should stand up for the Free Exercise Clause of the First Amendment.