The Little Sisters of the Poor: Ordinarily in Their Homes for the Elderly Poor, but Today in Federal Court

Each Catholic religious order has its own special charism that can be seen in institutions founded by and run by members of the order. In and through their various institutions, I have personally experienced the distinctive charism of Dominican sisters, Salesian priests, brothers, and sisters, Capuchin Franciscan priests, Holy Cross priests and brothers, Jesuit seminarians and priests, and Augustinian priests and brothers, among others. It was not until earlier this year, however, that I encountered the distinctive charism of the Little Sisters of the Poor in their own distinctive institutions: homes for the elderly poor. The Little Sisters’ charism is one of hospitality, in which the Sisters strive to “be little in order to be close to the most humble, and [to] be close to make them happy.”

Like many Catholics, I was familiar with the Little Sisters from their trips to our parish to beg for funds for their ministry. I knew that they knew how to ask in a way that touched the hearts of the congregation. But it was not until I met some of the sisters at St. Joseph’s Home in Richmond (including two Sisters from St. Martin’s Home in Baltimore), and again at Jeanne Jugan Residence in Washington, D.C., that I understood on a deeper personal level the real difference that their presence makes in the lives of their homes’ residents and in the life of the Church. It’s the difference that comes from knowing that one is loved and has dignity and will not die alone, and the difference that comes from vowed women religious spreading that love, cultivating that dignity, and accompanying the dying on their final journey.

Unfortunately, however, the occasions for my visits to their homes were meetings to discuss legal matters. Like many religious organizations, the Little Sisters have needed to figure out how to deal with the federal government’s refusal to treat them as a religious employer exempt from the legal requirement to offer health benefit plans that violate their religious beliefs. The fruit of some of those earlier consultations was a set of comments in response to the federal government’s Notice of Proposed Rulemaking. In those comments, the Little Sisters respectfully requested the government “to reach a just resolution that respects the religious freedom and conscience rights of all.” And the comments expressed the hope “that it is unnecessary for us to join the scores of employers that have already resorted to the federal courts for protection.”

That hope has now met necessity, and the Sisters are now in federal court. Through two of their homes (in Denver and in Baltimore), the Little Sisters have filed a lawsuit, together with Christian Brothers Services and Christian Brothers Employee Benefits Trust (which cooperate with religious organizations in the provision of benefits). The lawsuit seeks relief from enforcement of the requirement to arrange their health benefit plans so that beneficiaries receive no-cost access to female sterilization and all FDA-approved contraceptive drugs and devices (including some with abortifacient properties).

Although aware of the Little Sisters’ religion-based objections to this requirement, the federal government has refused to treat the Little Sisters’ homes as “religious employers” that receive an exemption. Having witnessed the Sisters’ ministry in these homes and having worshipped with the Little Sisters in the St. Joseph’s Home’s chapel, this refusal boggles even the lawyerly part of my mind. These Little Sisters of the Poor homes are—in the words of Cardinal George—“icons of mercy where Christ is welcomed and served in the elderly poor with the utmost respect for their dignity.” In any ordinary time, these homes would easily be recognized as “religious employers.” But perhaps this is no ordinary time. If the federal government continues to refuse to recognize these homes as “religious employers” under the federal contraceptives mandate, then words have lost their meaning for them.

The lead lawyers on the case are from the Becket Fund for Religious Liberty and Locke Lord LLP. I am continuing to assist the Little Sisters as part of their legal team and will therefore be more circumspect than I might otherwise be in discussing various aspects of the case. But the complaint speaks for itself. And the Becket Fund has created a case page with more background, including a press release and a web video, which I encourage all to check out.

(cross-posted at Mirror of Justice)

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USA Today whiffs on RFRA and gets legal doctrine wrong in religious liberty op-ed

USA Today ran an editorial today arguing that businesses should not be able to rely on religious freedom in refusing to provide no-copay coverage for all FDA-approved contraceptive drugs and devices.  The newspaper also ran Mark Rienzi’s better op-ed for the opposite position. (HT: Mirror of Justice)

Both op-eds are written in plain English and make their points effectively. But USA Today’s house editorial is marred by a misunderstanding of existing religious liberty law. In particular, the editorial is written as if RFRA does not already exist. Instead of arguing that RFRA does not protect business corporations, as some have tried to do, the editorial simply misdescribes the state of the law. It argues that “the issue is one of balance” without describing the law that describes how that balance is to be struck. Indeed, the editorial describes “granting religious exemptions to private organizations” as “troubling” and “open to abuse,” seemingly unaware that RFRA exists and does precisely this. Although the Obama Administration has tried to carve out the category of for-profit, secular corporations from RFRA’s reach, everyone agrees that RFRA provides some “religious exemptions to private organizations.”

The editorial also is mistaken about Supreme Court precedent. Consider the following paragraph:

Over the years, plaintiffs have demanded religious exemptions from laws on racial equality, the military draft, paying taxes, child neglect, drug use, animal cruelty and more. The Supreme Court has repeatedly said no, drawing a line between laws that explicitly target or place a substantial burden on a religion and those that impose broad, secular requirements on society that people might find religiously objectionable.

This paragraph implies that the Supreme Court has said “no” to religious exemptions from laws on drug use and animal cruelty. But that is not true. In Gonzales v. O Centro Espirita Beneficente UDV, 546 U.S. 418 (2006), the Supreme Court held that RFRA provided an exemption for “drug use” in a religious ritual. (The lead party that brought the claim in this case, by the way, was a New Mexico corporation.) And in Church of the Lukumi Babalu, Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), the Court held that the Free Exercise Clause protected ritual animal sacrifice by adherents of the Santeria religion; this ruling prohibited enforcement of a city ordinance justified in part by concerns about animal cruelty.

A bigger problem with USA Today’s statement of the law, however, is that it conflates laws that explicitly target religion and laws that place a substantial burden on religion, and then contrasts those two kinds of laws with laws that “impose broad, secular requirements on society that people might find religious objectionable.” The problem with this framing is that some laws that impose broad, secular requirements on society also place a substantial burden on religion. And that is why Congress passed RFRA. Unlike the Free Exercise Clause, which the Supreme Court has held to provide no protection against neutral and generally applicable laws, RFRA protects against such laws whenever they impose a substantial burden on religion. RFRA’s protections are triggered by the imposition of the burden, not the nature of the law imposing that burden. RFRA claims do not always win, of course. But RFRA places the burden on the government to satisfy strict scrutiny when a federal law imposes a substantial burden on the exercise of religion. If the Obama Administration has to satisfy strict scrutiny for its contraceptives mandate, it will lose.

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Times-Dispatch op-ed on RFRA and the contraceptives mandate

Today’s Richmond Times-Dispatch contains an op-ed that I authored about the availability of a claim under the Religious Freedom Restoration Act for religious organizations that object to the contraceptives mandate. The policy changes announced Friday are certainly a step in the right direction. But the RFRA litigation will continue.

The ending of the op-ed–written earlier in the week and quickly revised immediately after the President’s announcement on Friday afternoon–is more tentative than I now believe is warranted. I wrote: “Should legal action continue to be necessary — and it very well could as more details of the administration’s changed plan take shape — the federal courts remain open for the enforcement of Congress’ broad understanding of religious liberty against an unreliable executive branch.”

If Friday’s announcement is the Administration’s “final offer,” continued litigation will be necessary. The reason why is captured well in the following statement by a group of distinguished legal scholars:

The reason for the original bipartisan uproar was the administration’s  insistence that religious employers, be they institutions or individuals, provide insurance that  covered services they regard as gravely immoral and unjust. Under the new rule, the government  still coerces religious institutions and individuals to purchase insurance policies that include the very same services.

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Rope-a-dope rulemaking to put off religious liberty litigation loss?

Comments by Vice President Joe Biden yesterday suggest a more conciliatory approach by the Administration toward religious liberty objections to the contraceptives mandate. The Vice President said that people have not focused enough on the additional year that the HHS gave objecting institutions for coming into compliance: “There’s going to be a significant attempt to work this out, and there’s time to do that. And as a practicing Catholic, you know, I am of the view that this can be worked out and should be worked out and I think the president, I know the president, feels the same way.”

The Administration has less time than it may think to “work this out.” Thanks to the Religious Freedom Restoration Act and the First Amendment, the Administration will need to answer in federal court well before another year has expired. The operative regulation is an “Interim Final Rule” approved on July 28, 2011, effective August 1, 2011, and published in the Federal Register on August 3, 2011 at 76 Fed. Reg. 46,621. The “interim” label does not prevent this regulation from being final agency action that is challengeable in federal court under the Administrative Procedure Act. Moreover, the “interim” label does not control the standing or ripeness analysis in any of the lawsuits that have been filed to date.  To the extent that the Vice President’s comments might suggest a rope-a-dope rulemaking strategy for the Administration to avoid having to answer in federal court for its violation of religious liberty, that strategy should not succeed.

In any event, the Vice President’s interpretation of the purpose of the one-year cannot be squared with the HHS’s announcement of it (an announcement that coincided, but not coincidentally, with marking of the anniversary of Roe v. Wade). As the announcement makes clear, the one-year period is for religious objectors to come into compliance–a transitional period for the groups to accommodate themselves to the new legal order imposed upon them. The HHS announcement provided every indication of having made a firm decision and no indication that its position, rather than that of the objectors, would yield.

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RFRA, Kmiec, and the too-narrow religious exemption from the contraceptive mandate

America Magazine has a post by law professor Doug Kmiec setting forth how President Obama can “confess error” in requiring Catholic organizations, and others morally opposed to contraception, to provide insurance coverage for that to which they are morally opposed. The statement that Kmiec would advise President Obama to deliver includes the following:

Recently we made a mistake. While the constitution doesn’t mandate religious exemptions from general laws, I believe we should accommodate as many beliefs as possible and to the greatest extent possible without jeopardizing the purpose of the law.

The focus on the Constitution alone is curious. The Religious Freedom Restoration Act, or RFRA, requires that federal laws and regulations adhere to something akin to the “belief” about accommodation that Kmiec would have President Obama articulate. The need to accommodate need not rest on anything as ephemeral as President Obama’s faltering beliefs about religious liberty. There’s a federal statute for that.

The RFRA claim should come as no surprise. It is the lead claim in the Belmont Abbey case brought by the Becket Fund. And as far as I can see, it’s not even a close question whether the HHS mandate runs afoul of the RFRA. Perhaps I haven’t been paying enough attention, but I’m surprised at how little press the RFRA violation has received. For example, the recent Los Angeles Times article by David Savage that explains why the contraceptive mandate could face difficulties if it ever reached the Supreme Court discussed First Amendment jurisprudence but not the RFRA.

(In writing up this blog post, I came across several posts (here, here, here, here, here, and here) by Ed Whelan at National Review Online’s Bench Memos explaining why the mandate violates the RFRA. I’d be grateful for pointers to any responses, for as mentioned, I do not see how this is a close question.)

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