Just sign on the dotted line, Sister; it’s just a piece of paper. Don’t worry about your faith.
That’s the position the government has put the Little Sisters of the Poor in, because it is enforcing the HHS contraceptive mandate against an order of nuns that provides free health care for the aged. The government has threatened the order with substantial fines if they don’t comply, which could cripple their ability to continue to help the poor.
In a moment of clarity, Associate Supreme Court Justice Sonia Sotomayor stayed the imposition of the mandate against the religious sisters Dec. 31, giving the U.S. Justice Department a deadline of 10am Jan. 3 to respond. At deadline, the Justice Department filed its brief as to why Sotomayor’s stay should be lifted.
The pettiness of the government here should not go unnoticed. The government could have let the stay continue and continued to argue its position before the lower court. Instead, it wants the court to end the stay and force the penalties to be imposed on the women religious.
More U.S. citizens should realize what the government is doing here in the name of “health care”: In this instance, as with so many of its efforts against Catholic institutions, the government is actually potentially reducing the number of people able to be helped.
Essentially, the government says in its brief that this case is much ado about nothing, and certainly not about religious liberty. The sisters have a way out, says the government: The order can just sign a certification that establishes the order has religious objections, and all will be well.
But there is a catch: The certification also must, by law, designate someone else (usually the plan administrator or other entity) to provide the offending health coverage. As the Little Sisters of the Poor’s lawyers at the Becket Fund for Religious Liberty point out, this is a false exit. For the sisters, directing someone else to do something that violates their faith is no different than asking the nuns to do it themselves.
As one commentator put it, the government’s position essentially requires the nuns to pass out vouchers for free contraceptives rather than pay for the drugs themselves. This is a legal distinction without a moral difference, and the order is right to challenge the government on it.
The government can’t have it both ways and say on the one hand that the certification has little meaning and yet argue it is so important that the sisters must be exposed to fines for not signing it. As the Becket Fund stated, “The government now asks the Supreme Court to believe that the very thing it is forcing the nuns to do — signing the permission slip — is a meaningless act. But why on earth would the government be fighting the Little Sisters all the way to the Supreme Court if it did not think its own form had any effect? The government’s brief offers no explanation for its surprising insistence on making the Little Sisters sign a form the government now says is meaningless.”
The government’s ulterior motives are very clear. Forcing the religious order to sign a certification without a court order would vindicate its position and allow the government to force other religious institutions to do the same thing. By forcing the certification, the government would also partially succeed in hiding the crucial moral and constitutional issue behind paperwork it has worked hard to convince the secular media is meaningless.
Further, the position reveals the government’s fear. The Little Sisters of the Poor asked for an order from the Supreme Court itself to stop imposition of the HHS mandate against it. This kind of an order is only rarely given, and the government’s brief shows some panic at having the Supreme Court consider the merits of its arguments about the mandate. It has lost repeatedly in the lower courts and, apparently, would prefer to keep the court out of the issue and instead force the hand of the religious order and other organizations around the country.
Gerald J. Russello is editor of the University Bookman (KirkCenter.org).