SCOTUS uncharacteristically equivocal on bullying by Government
(with a capital G, as in God)
By Jonathan Imbody | May 17, 2016
With uncharacteristic restraint, the Supreme Court of the United States (SCOTUS) today decided that, well, it just can't decide on a landmark religious freedom case.
You've heard all about this case (Zubik v. Burwell), which consolidated cases against the Obama administration by the following plaintiffs:
The cases arose because President Obama insisted on using Obamacare as a vehicle to make even elderly nuns participate in his divisive mandate that every woman in America have free contraceptives. The mandate includes drugs like Ella that the FDA says may "affect implantation," i.e., terminate the life of a human embryo.
The nuns, Christian colleges and other faith-based ministries said they could not morally participate in the program. The administration refused to exempt them or reasonably accommodate their conscience concern, insisting that objectors sign what amounted to a permission slip directing their insurers to provide the objectionable contraceptives and potential abortifacients.
After oral arguments in the case, the Court requested supplemental briefing from the opposing parties to see if a mutually satisfactory compromise might be possible. The administration, which for years had held the hammer over the head of the ministries with no indication of willingness to compromise, apparently recognized the weakness of its legal position and conceded that maybe it could find a different way to reach its goal of universal contraceptive coverage.
In its ruling handed down Monday, the Court directed the lower courts to give the parties "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.'”
Suddenly shy and deferential, the Court expressed "no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest." A ruling protecting religious freedom would have been extremely helpful, and the fact that the administration suddenly conceded that in fact it could change its tactics indicates that it had not pursued the least restrictive means of accomplishing its goal.
SCOTUS never displayed such indecisive deference when mandating for the entire nation same-sex marriage or abortion on demand. This indecision comes despite the fact that the First Amendment clearly protects citizens of faith from government restriction ("no law respecting an establishment of religion, or prohibiting the free exercise thereof..."). Congress, through the bipartisan Religious Freedom Restoration Act, also clearly prevents the government from abridging religious rights without a compelling interest and using the least restrictive means to achieve its aims.
So now it's up to the lower courts (where a bunch of these cases were decided with differing conclusions) to guide the Obama administration and religious objectors to a compromise in which everyone's happy. Nuns don't have to participate in what they are convinced are morally reprehensible actions and President Obama gets to find a way to get free contraceptives to every woman in America, coast-to-coast coverage from the Hamptons to Beverly Hills.
Such a solution may let the nuns and other objectors avoid the millions in dollars of annual fines threatened by the Obama administration, and that's worth celebrating. But it's highly unlikely to satisfy ideologues whose goal appears to be making everyone dependent upon and subservient to the Government. To them, Government (spelled with a capital G, as in God) is not a protector of individual freedom and conscience but a hammer to pound every citizen into submission to state dogma.
Thankfully, a group of nuns and other courageous "Daniels" of our day, as in biblical times, refused to bow down and submit to the king's decree and escaped the lions' paw and maw. God give us more like them...and make us likewise courageous.
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