The Little Sisters of the Poor and Big Brother
The Obama administration unilaterally imposed the HHS mandate on scores of businesses and organizations that now must seek protection from the Supreme Court.
On March 23rd, the Supreme Court will hear oral arguments in the case of Zubik v. Burwell, consolidated with six other cases (including Little Sisters of the Poor) with dozens of plaintiffs between them, and doubtless affecting scores more of religiously-affiliated universities, organizations, individuals, and others whose religious objections have not yet made it into court. All these religious actors object in some degree to being forced by the HHS mandate to violate their consciences by providing contraceptive services that cause abortions.
Almost two years ago, the Court in Burwell v. Hobby Lobby ruled that for-profit businesses can object to the HHS mandate under the Religious Freedom Restoration Act (RFRA). While such businesses exist and must be protected, in the Zubik case there are far more non-profit religiously-motivated universities, dioceses, ministries, bishops, media networks, missions groups, and others whose work is threatened by the mandate unilaterally imposed on them by the Obama Administration — a mandate never authorized by Congress.
The United States has a long and rich history of religious organizations that have served the public good. These organizations have had conscience objections before, but for the most part had the religious liberty to do their mission. None of their objections, however, have occurred on such a massive scale as those triggered by the HHS mandate.
The government claims it has accommodated these groups. But they would still violate their consciences by accepting this “accommodation” because, in their view, it forces them to participate in the process of providing abortion-causing drugs and services (with the threat of thousands of dollars in fines if they refuse). Thus, the price of following their consciences is their existence, as many will be forced to cease operations because they can’t pay the fines.
Who will be the victim of all this? Ultimately, those served by these organizations. The Little Sisters of the Poor care for the elderly poor in 30 countries around the world. Guidestone Financial Services, another challenger, provides financial advice to pastors and churches. Others provide social services on a massive scale. These services would be close to impossible to replace if these organizations and ministries are forced out of existence for refusing to violate their consciences, and those they serve will be left on the street. Even Hobby Lobby and other businesses have been placed under this “accommodation” by the government despite winning the Supreme Court the first time.
These cases also implicate a deeper issue — society’s view of what is private and what is public, and the degree to which government is allowed to intrude into religious affairs in order to shrink the private and grow the public sphere. The Supreme Court is currently prohibited under the First Amendment from intruding into religious affairs to determine questions of religious doctrine.
While that legal issue is not directly at play here, it is implicated in principle. For if the Court refuses to accept the Little Sisters’ assertion that their beliefs are being substantially burdened in this case, it would have to decide for itself what their religious doctrine says on its way to determining whether their beliefs were substantially burdened. This decision will set a precedent for how we function as a society, making it more acceptable for the government to determine whether religious beliefs have been violated in a given case. The government will become the arbiter of what constitutes a religious belief, and what doesn’t.
If the government is given this power to intrude into private religious affairs and decide the question of what is religious, it will become more acceptable to have more activity regulated in the public sphere by government and less in the private sphere by organizations. Moreover, giving the government this power sets the precedent for it to regulate other spheres of activity which were supposed to be beyond the government’s reach. As government grows, it naturally becomes more intrusive. This is a vicious cycle which will continue until government heavily intrudes into our lives.
As a society, we must decide whether we want this outcome, not merely whether we care that the HHS mandate “accommodation” substantially burdens the beliefs and practices of universities and religious organizations. All this is the potential impact of the Zubik case which the Court will hear this week and decide later this spring.