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Judges interfering with faith


Last week a federal appellate court ruled against the Little Sisters of the Poor, an order of Catholic nuns dedicated to caring for the elderly poor. The Sisters believe they would be complicit in sin if they allow the government to use their healthcare plan to offer their employees contraception and abortifacients, but three judges analyzed the Sisters’ religious beliefs and determined they were “mistaken.” In essence, the judges instructed the Sisters on their own theology and explained that they, the judges, knew better than the Sisters what would constitute a sin.

Here’s how the law should work: if religious believers sincerely believe that a government-imposed requirement will cause them to violate their religion, then the government must exempt the individuals from that action, with only two exceptions. First: religious objectors still have to comply with the government’s requirement if the government-imposed burden on their religious exercise is anything less than a “substantial burden.” Second: religious objectors still have to comply if the government-imposed burden on their religious exercise is the least restrictive means available to advance a compelling government interest. In the Little Sisters’ case, the court agreed that the Little Sisters were sincere, and that they would have to pay crushing fines if they didn’t comply, but it ruled that the Little Sisters’ religious beliefs weren’t substantially burdened because all they must do to comply with the rule is write a short letter: a bit of paperwork.

{mosads}That’s just wrong, both factually and legally. But what’s really scary is that the court decided the burden was insubstantial based on the ease of doing the act itself, not the size of the burden imposed by the government if the Little Sisters refused to obey. This analysis is dangerously backwards. It is not the government’s or court’s place to analyze the merit of a religious belief—making those wholly religious determinations is beyond both the authority and competence of the court and government. The central importance of this individual right to determine the dictates of and then to follow one’s conscience is reflected by its pride of place in the First Amendment of the Constitution.

Nor is it the government’s role to tell a believer how easy or hard an act is based on the judges’ own worldview. For example, there’s no question that it’s physically easy to flip on a light switch. But for an Orthodox Jew on the Sabbath, that would be disobeying G-d. Or, to adapt the illustration of a judge who got the analysis right: it’s really easy to lend your neighbor an axe if you know they want to borrow it to go chop down their tree. But if you know he plans to use your axe to commit murder, lending your axe suddenly takes on a much different meaning.

Sometimes it can be tricky to strike the right balance when an individual’s sincere religious beliefs conflict with government interests. But the contraceptive mandate is an easy call. First, the burden is unquestionably massive. The size of the penalty, measured objectively in dollar amounts, reaches millions of dollars every year. That’s far more than the Little Sisters can easily divert from caring for the elderly poor.

But, second, what makes the mandate especially easy to reject is how unnecessary it is. As the Supreme Court reaffirmed last month in King v. Burwell, the government has other means to achieve its healthcare objectives—including its own fully functioning health care exchanges, which Little Sisters employees can use right now if they prefer the government’s plan to the Sisters’. Mark Rienzi, the Little Sisters’ attorney from the Becket Fund for Religious Liberty, put it well: “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.”

Egbert is a Georgetown University Law student and summer associate at the Becket Fund for Religious Liberty.


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