When President Barack Obama delivered the 2016 State of the Union address to Congress earlier this month, the chambers included a number of special guests. Among them were two religious women, who were personally invited by Speaker Paul Ryan: Little Sisters of the Poor Loraine Marie Maguire, the mother provincial, and Constance Veit.
It’s rare to see the Little Sisters outside of their nursing homes, where they lovingly care for the elderly poor as they have since their order came to the United States in 1868. Their presence at the State of the Union offered a striking reminder of the religious order’s robust legacy in this country, but also of the powerful forces that prompted them to file a legal challenge to take the federal government to court.
“The Little Sisters of the Poor care for the most vulnerable among us, and they should be free to practice their faith without the threat of government interference or intimidation,” Speaker Ryan said in a statement that referred to the Little Sisters’ legal challenge to the Health and Human Services’ contraceptive mandate that will be decided by the U.S. Supreme Court later this term. “The [Little] Sisters’ stand in defense of religious liberty — one of our most fundamental rights — is nothing short of courageous, and it’s my privilege to support their cause.”
The controversial mandate requires religious nonprofits to cover cost-free contraception, abortion-inducing drugs and surgical sterilization in their employee health plans. After the U.S. bishops protested the law’s omission of religious charities, schools and hospitals in its exemption for churches and dioceses, the White House approved a series of accommodations that culminated in a rule that directed objecting employers to confirm in writing their desire to “opt out.”
A brief filed by the legal offices of Paul Clement — the former U.S. solicitor general and the order’s Supreme Court advocate — dismantled the government’s contention that the workaround did not burden the Little Sisters’ religious freedom.
“If all the government wanted from petitioners was to know that they want to opt out of the contraceptive mandate, then this litigation would have ended the day it began. The problem is that the government wants something more, and always has: It wants petitioners to take affirmative steps and file the paperwork necessary to get contraceptive coverage to their employees through the plan infrastructure that petitioners created and maintain. If and only if they do so will petitioners be deemed in compliance with the contraceptive mandate,” read the summary of argument in the merits brief submitted by Clement.
“In other words, the government wants petitioners to do precisely what their sincere religious beliefs forbid — and it is threatening them with draconian penalties unless they do so.”
The Little Sisters’ lawyers at the Becket Fund for Religious Liberty have argued that the mandate violates their religious liberty, as guaranteed under the Religious Freedom Restoration Act (RFRA). That federal law directs the government to pass laws that don’t substantially burden religious freedom without a compelling state interest.
When that interest is established, the state must use the least restrictive means to advance its interest. The Becket Fund also represents EWTN in its legal challenge to the mandate. The Register is a service of EWTN.
The Obama administration has argued that its accommodation respects the sincerely held beliefs of the Little Sisters. But Clement’s brief notes that the plaintiff, not the government, decides what beliefs matter in a RFRA case.
Indeed, “if the government were really correct that its regulatory scheme imposes no burden on religious employers at all, then the true exemption for houses of worship could be eliminated tomorrow.”
In January, 207 members of Congress signed an amicus brief endorsing the right of the Little Sisters and other religious organizations to be exempted from the mandate. But the signatures included only a handful of Democrat lawmakers, and that underscored the damaging political impact of the legal battle, which had turned a bedrock constitutional right into partisan ping-pong.
Three Republican presidential candidates — Sens. Ted Cruz of Texas, Marco Rubio of Florida and Rand Paul of Kentucky — were among those who signed the brief, signaling the case’s importance in the 2016 election year.
The legal arguments bolstering the Little Sisters’ case will be critical. For now, though, the most striking and egregious aspect of the White House’s stubborn refusal to exempt the Little Sisters is that the four-year battle in the courts has consumed time and resources that otherwise would be devoted to caring for the needy.
An aggressively secular administration has provided exemptions to many employers, even for the purpose of “administrative convenience,” as Clement’s brief puts it. Yet the Little Sisters and other religious nonprofits (including EWTN, which has filed legal action of its own) must be pursued through the courts until they relent.
Of course, members of the religious order — starting with its foundress, St. Jeanne Jugan, who began caring for the elderly poor in the wake of the French Revolution — have faced greater challenges.
The French saint was especially fond of the American novices, who braved a long sea voyage from the New World to join the order and commit themselves to serving the needy.
We applaud that same courage today, and we pray that the sisters’ testimony of faith will not only prevail in court, but bear great fruit in the Church and in a civil society that has lost its moral grounding.