The Little Sisters of the Poor, religious liberty and you: What comes next

May 16, 2016

Today, the United States Supreme Court handed a major victory for religious liberty when it issued a per curiam order in Zubik v Burwell, a case involving the Little Sisters of the Poor and several other faith-based organizations requesting an exemption from the Obama Administration’s HHS mandate requiring employers to offer a wide array of contraception as part of their health insurance for employees.

In its order today, the Court unanimously vacated the lower court rulings, which had sided with the Obama Administration against the Little Sisters, universities, and other charities whose religious liberty was violated.

Previously, the lower courts had held that these groups must either violate their faith by participating in the health insurance scheme providing certain forms of contraception that have abortive effects or to pay ruinous fines that could have shut down many of these charities.

How is this a victory for religious liberty?​

Today, the U.S. Supreme Court did not rule on the legal arguments. Instead, after the unusual step of asking each side whether they could be open to a compromise where the government can provide the contraception it wants without violating these groups’ religious liberty, the Supreme Court sent the cases back to the lower courts to see if the outstanding issues could be resolved.

This is a significant victory.  The government had wrongfully claimed for years that they had no better way to provide contraceptives without violating these groups’ consciences.  Through its action today and in quoting the government’s own words back to them, the Supreme Court thinks a compromise respecting religious liberty is possible.

What comes next in this case now?​

Since the Supreme Court vacated the previous decisions at the Courts of Appeals, these legal cases now return to the Third, Fifth, Tenth, and D.C. Circuits.  As the order stated,

Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.

Just as the Court’s move asking for supplemental briefing following oral arguments was unusual, what comes next at the appellate level is also unusual, but it is cognizant of how our legal and political systems should operate in an ideal world.  The Supreme Court is asking the U.S. government to work out a compromise that does not violate the religious liberty of the Little Sisters of the Poor. Repeatedly, the Obama Administration has claimed that their regulations are the least restrictive option regarding religious liberty.

Now, at the lower level courts, the government’s lawyers will work with the faith-based organizations’ lawyers to once again recraft the regulation in a way that is amenable for all sides moving forward. At that point in time, the lawsuits would become moot and unnecessary, being resolved through a process that would no longer require any federal judges to weigh in on the matter.

Why should Christians care?

Although the details of this case are complicated, one thing isn’t: whenever the government can tell nuns serving the poor that they must provide abortion-inducing drugs or be fined out of existence, the fundamental ability to practice our faith and love our neighbors is in jeopardy.

Dr. Moore lays out four lessons to take away from the case after today’s decisions: religious liberty is alive and well; even when victorious, religious liberty is imperiled; religious liberty requires an explanation of religion itself; and religious liberty means standing up for the others’ rights of conscience.

Today’s ruling means this issue isn’t going to be resolved any time soon.  This is an opportunity for Christians in all walks of life and all areas of the country to fully live out the Gospel of Jesus Christ, to love our neighbors, and to be a light in the darkness.  This battle is being waged in our courts and in our halls of government because the basic nature of faith is misunderstood, misrepresented, and openly attacked.

Ronald Reagan famously said, “Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.”

It’s in conversations with our neighbors, our children, and even those who disagree with us that we can best protect the religious freedoms for the next generation.

Joseph Williams

Joseph Williams, a native Tennessean, is an attorney and founding partner of The Peacefield Group, a legal and policy consulting firm in Nashville. Prior to founding The Peacefield Group, he practiced law at the American Center for Law & Justice,... Read More