Little Sisters have new champions, defenders in court

And one fewer Justice on the high court.

On Thursday of last week, Women Speak for Themselves (WSFT) launched a campaign, loosely aligned with Valentine’s Day weekend and beyond, to ‘show a little love to the Little Sisters‘. It coincided with a new website for WSFT, loaded with resources and links to amicus briefs its founder filed at the Supreme Court, including this latest one on behalf of the Little Sisters in their struggle to uphold their religious freedom rights. Two days later, Supreme Court Justice Antonin Scalia, great religious freedom defender, suddenly and unexpectedly died.

Why are the Little Sisters of the Poor even in court in the first place? Especially the court system at different levels, reaching all the way to the Supreme Court, doing whatever they can to save their nearly two centuries long ministry to the poor from the threat of government overreach that threatens their services and institutions? Why would the government even do that?

Let’s review. (It’s stunning that we’re still in this situation more than four years after the federal fiat known as the HHS Mandate was issued by the administration’s Department of Health and Human Services, as a contraception delivery scheme slipped into the Affordable Care Act, known as Obamacare.)

For clarity and accessibility, this HHS Info Central has it all: graphics, charts, court challenges, case names and dates and outcomes or facts about pending hearings. It’s a ‘what’s wrong with this picture?’ snapshot of the HHS Mandate in Obamacare.

The Little Sisters of the Poor represent the most emblematic case. By far.

In November 2015…

the U.S. Supreme Court agreed to take up the case of the Little Sisters of the Poor, a group of Catholic nuns facing tens of millions of dollars in IRS fines because they cannot, according to their faith, include contraceptives in their employee health plan. This is the second time the Sisters have been forced to ask the Supreme Court for protection against the government’s HHS Mandate. The Court’s decision will finally resolve the crucial question of whether governmental agencies can, wholly without legislative oversight, needlessly force religious ministries to violate their faith.

Yes, that’s explicitly the situation.

The Little Sisters, who care for more than 13,000 of the elderly poor around the world, had no choice but to appeal to the Supreme Court due to the government’s refusal to exempt them from the HHS mandate, which is currently in its 9th unacceptable iteration. The mandate forces the Little Sisters to authorize the government to use the Sister’s employee healthcare plan to provide contraceptives and abortion-inducing drugs – a violation of their faith – or pay massive fines, which would threaten their religious mission. The Supreme Court entered a temporary order protecting the nuns in January, 2014, but the government has continued litigating, asking lower courts to remove that protection. (emphasis added)

“As Little Sisters of the Poor, we offer the neediest elderly of every race and religion a home where they are welcomed as Christ. We perform this loving ministry because of our faith and cannot possibly choose between our care for the elderly poor and our faith, and we shouldn’t have to,” said Sr. Loraine Marie Maguire, Mother Provincial of the Little Sisters of the Poor. “All we ask is that our rights not be taken away. The government exempts large corporations, small businesses, and other religious ministries from what they are imposing on us – we just want to keep serving the elderly poor as we have always done for 175 years. We look forward to the Supreme Court hearing our case, and pray for God’s protection of our ministry.”

They don’t want to be in court. They didn’t pick this fight. They’re about the last people in public service the government should be forcing to deliver contraception and morning after pills in their healthcare plans. And yet, here we are.

So with the Supreme Court taking on the case again, legal scholar Helen Alvare saw the opportunity to present a real challenge to the government’s claim or defense that it has a “compelling interest” in a mandate that burdens religious freedom, one of a two-prong test the Religious Freedom Restoration Act requires for government to enforce anything that violates so fundamental a protected liberty.

First, fleshing out the contents of the “compelling state interest” requirement will provide much-needed guidance in future religious freedom cases. Lawyers are accustomed to encountering compelling state interest analyses in due process and equal protection cases involving fundamental constitutional rights and suspect classifications. There are a significant number of cases interpreting the meaning of a “compelling state interest” in the areas of speech or racial discrimination. But there are fewer in the area of religious freedom…

Second, a “compelling state interest” analysis in the context of a mandate case would shed light on the government’s tendency – especially when contraception programs are concerned – to make extravagant claims without empirical foundation, while threatening the religious freedom of institutions providing unparalleled amounts of service to women. Governments at both the federal and state level have fallen into the habit of using contraception to “signal” their commitment to women’s rights. The facts on the ground, however, are much more complex.

Enter Women Speak for Themselves, which started as an open letter in response to high level women in government purporting to represent women’s rights and claims on services that really didn’t represent vast numbers of American women outside the Washington beltway and across the country. Helen Alvare was co-author of that letter with another lawyer, Kim Daniels. The open letter turned into a grassroots movement that has spread across the country, across demographics and age groups and backgrounds of women engaging these issues at their most local levels and on the national level, through media and initiatives that allow them to contribute to and change the conversation by sharing their lived experiences. It’s a remarkable range of stories from women speaking for women and their families and health and rights.

The Little Sisters are among those for whom they speak. These nuns don’t seek nor want the spotlight, but Pope Francis paid them a surprise visit last September while in DC during his US apostolic journey, and House Speaker Paul Ryan featured them as his guests among invited attendees – in a moment of irony – to President Obama’s final State of the Union Address in January.

Interestingly, the American Spectator noticed, and pointed out that Justice Sonia Sotomayor was the one who granted them a temporary injunction against punitive fines for not following the mandate, as they pursued permanent relief. Her vote will be needed again when the case is argued before the Supreme Court during Holy Week, in March 2016. Because if she comes down on the liberal side of reading religious freedom as applied to this case, and the court votes 4-4 in the absence of Justice Scalia, religious liberty will face a ‘calamity‘.

The Little Sisters would be forced to violate their faith by subsidizing the distribution of abortifacients, sterilization, and contraceptives to their employees or face ruinous IRS fines. The government exempts a wide variety of religious ministries from the contraception mandate. But the Obama administration insisted that this organization run by Catholic nuns, which has been providing free health care to elderly patients of every race and religion since 1839, is somehow not eligible for the usual exemption. Incredibly, the Tenth Circuit Court of Appeals ruled in favor of the government.

…Before Justice Scalia’s tragic death, there was a reasonable chance that the Little Sisters and six other organizations with which the Court consolidated their case might prevail.

Now, unless one of the four liberal justices — Breyer, Ginsburg, Kagan, and Sotomayor — casts an uncharacteristically nonpartisan vote, a 4-4 vote is all but inevitable.

For once, instead of Justice Anthony Kennedy holding the pivotal swing vote, it may rest with Sotomayor. Or Chief Justice John Roberts, who can work to sway the court in a couple of directions to avoid a calamity.

In the immediate aftermath of Justice Scalia’s untimely death, the Little Sisters of the Poor (with the help of technically proficient friends) released this new website making this whole story much pithier and easier to grasp than ever. Have a look, it’s all there.

Who they are:

The Little Sisters of the Poor have dedicated their lives to living with and caring for the elderly poor. They have been focused on service, not advocacy or policy, and, in this case, they’ve exhausted every option possible before going to court.

What this case is about:

After promising that the Little Sisters’ religious beliefs would be protected, the government created a new regulation requiring the Little Sisters to change their healthcare plan to offer services that violate Catholic teaching. But 1 in 3 Americans do not have a plan that is subject to the mandate HHS is fighting so hard to force the Little Sisters of the Poor to follow. Exxon, Chevron, and Pepsi — as well as other large corporations — are exempt from the mandate, because they never changed their plans and are grandfathered. And the government is not even requiring our own US military to provide these services through their family insurance.

The government is arguing that since it has offered to reimburse the costs of the services it wants the Little Sisters to provide, they should have no moral objection to offering them. The Little Sisters are saying this is not about money, but conscience, and whether they should be forced to change their healthcare plan to offer services they have a moral objection to when those services could be provided more effectively through the government’s healthcare exchange.

And what the solution may, or can, be.

There is an easy solution that protects the Little Sisters’ religious freedom and the right of the government to offer these services to women who want them. Rather than trying to force religious plans to offer these services, the better solution is for the government to provide these services through the ACA healthcare exchange to any employees who want them but can’t get them through employer plans.

The Little Sisters are not trying to prevent the government from providing these services, but object to the government’s insisting the Little Sisters provide them (especially since the government has already refused to ensure that those free services are provided to one in three Americans). Giving all women access to contraception through the healthcare exchange is a simpler and fairer way for the government to provide these services to more women while protecting the religious freedom of the Little Sisters, who never wanted this fight and just want to get back to caring for the elderly in need.

They can use all the help and advocacy they can get. Women Speak for Themselves is providing the vehicle, and the avenue. It’s up to people to drive it home.

 

Justice Antonin Scalia, RIP

He will be remembered for a robust array of  aspects of his legacy.

“But his abiding contribution was in trying to stem the tide of government by judiciary.” That succinct summary by National Review editors captures the essence of Scalia’s place, time, and body of work, on the Supreme Court.

Judicial imperialism is a cancer in the body politic…

It has been for a very long time. Justice Scalia wasn’t gone from this life 24 hours before operatives in media and politics were spinning his vacancy on the court as a pivotal motivating factor that would, depending on the commentator, help the Democrats or Republicans depending on who the president nominates to succeed him and what the Senate does about the confirmation process when that nominee is named.

This election season, the Republican candidates for president — especially the eventual nominee — must place the politics of the judiciary squarely before the people, showing them that the only way toward a less political Supreme Court is through a more openly political debate about its future. If this happens, Antonin Scalia will have done, in death, one last great service for his country, rescuing American voters from a binge of silliness and sobering them up about their great responsibility as a self-governing people in a constitutional republic.

Moving “toward a less political Supreme Court…through a more openly political debate about its future” is exactly what this nation needs, along with a serious, sober, reasoned political debate instead of the ideologically divisive one that drives everything else.

One can hope.

Obamacare survives ‘near-death experience’, again

That’s how the Wall Street Journal described the second Supreme Court ruling to uphold the Affordable Care Act, as written.

Which is precisely what was at the heart of the case before the justices yet again, what the AFA said. Here’s the later version of the WSJ story, though the news alert that dropped into my inbox said this in opening summary:

The U.S. Supreme Court ruled the Obama administration can continue to subsidize health-insurance purchases by lower-income Americans across the country, a decision that preserves a centerpiece of the Affordable Care Act.

The ruling marks the second time President Barack Obama’s signature domestic policy achievement has survived a near-death experience in the courts, and leaves the law on a firmer footing for the remainder of his time in office.

And thus

rescuing for the second time the most ambitious social program in nearly 50 years and ensuring that the law’s ultimate fate will be in the hands of the political process.

Which nearly everything is, these days. In the hands of the political process, that is. Except for those matters  in the hands of the judiciary, though that wing has long been bending in the direction of the prevailing political winds.

As usual, there’s a lot of coverage out there, something to fit any viewpoint. Though I’m a legal and policy wonk, my angle is of a purist, how carefully we adhere to the truth and meaning of language of law, policy, and everything else from political promises to social realities, scientific statements to biomedical facts, faith claims to gospel teachings, and all things as they uphold human dignity.

So the key issue for me is how words were so central to this case and final ruling. Leaving aside the specifics of the AFA, otherwise known as Obamacare, I believe everyone deserves health care. How that is best delivered is debatable. Interestingly, two allegedly conservative justices, Chief Justice John Roberts and Justice Antonin Scalia, differed widely (and wildly) in their views of how to handle the Obamacare wording and challenge to it. And the wording of the opinion and dissent.

The WSJ reports:

The 6-3 ruling, written by Chief Justice John Roberts, upheld a signature achievement of President Barack Obama’s tenure. In buttressing the health law’s legal foundation it raised the odds that it may become as entrenched as Social Security, Medicare and Medicaid.

The case turned on wording, as the WSJ and any other responsible media reported, no matter how else they reported it. In particular, four words: “established by the State”.

Carrie Severino explains at NRO:

On the Chief’s appeal to context, Scalia points out that context “is a tool for understanding the terms of the law, not an excuse for rewriting them.” But, as Scalia explains, the Chief’s opinion does not merely redefine the words “established by the State,” it effectively deletes them from the statute because the majority’s position is that they add precisely no meaning to the law. Yet Congress used this apparently meaningless phrase over and over. “It is bad enough for a court to cross out ‘by the State’ once. But seven times?”

To which dissenting Justice Scalia went to great lengths by delivering his lively and blistering dissent from the bench, which is unusual.

To mention just the highlights, the Court’s interpretation clashes with a statutory definition, renders words inoperative in at least seven separate provisions of the Act, overlooks the con­trast between provisions that say “Exchange” and those that say “Exchange established by the State,” gives the same phrase one meaning for purposes of tax credits but an entirely different meaning for other purposes, and (let us not forget) contradicts the ordinary meaning of the words Congress used. On the other side of the ledger, the Court has come up with nothing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either under­standing of establishment by the State, and a resemblance between the tax-credit provision and the rest of the Tax Code. If that is all it takes to make something ambiguous, everything is ambiguous. (emphasis added)

There was a lot of buzz about judicial activism on this ruling. NRO’s Peter Augustine Lawler posted this in response.

I’m sympathetic with Roberts’s statesmanlike view that the judiciary is not the branch of government equipped, all alone, to save us from Obamacare. So he refuses an opportunity for “judicial activism.” But, from another view, he turns out to be quite the activist, telling Congress what it really meant by its incompetently drafted, screwed-up law. And so if judicial activism is a synonym for judicial legislation, that’s what we have here. Someone might say that Scalia was uncharacteristically the activist for wanting to strike part of the law down. But he claims to be doing the least activist thing by sending the law back to Congress. It should figure out what it really meant and then say that…

All in all, there are some interesting separation-of-powers issues here, as well as the one about the extent to which the Court should scope out the political environment before deciding whether or not to strike a law down.

Yes. Which is precisely the point. It was the point when the Blackmun court wrote abortion into law and cited the Constitution as grounding for it, making that up as it went. It was the point going back to the Dred Scott decision on slavery. Both issues involve classes of human beings denied human rights by the high court.

With this ruling, Justice Scalia said in his dissent, “words no longer have meaning”.

How that atmosphere impacted the decision on how the definition of marriage was deliberated and decided is about to become clear. The task of restoring the meaning of language in communicating human truths is as vital as ever. The merits of Justice Roberts majority opinion may be understandable to many people. But Justice Scalia’s clarifying blast is a valuable call for truth in justice.

Supreme Court marriage rulings shift American government tradition

We have always been a nation whose government serves by the consent of the governed, with separate and enumerated powers, states’ rights, rule of law and all that. Things have been ‘evolving,’ in popular parlance. With the Supreme Court rulings on marriage this week, we got a paradigm shift from self-government to ‘the tyranny of the majority,’ though that needs clarification to understand the meaning of “majority”, the way most of the language we’re using these days could benefit from clarification.

So just to recap quickly, John Adams, Alexis de Tocqueville and John Stuart Mill all referred to this term, roughly to mean ‘those who control the levers of power’, in my shorthand translation. Lord Acton put it thus:

The one pervading evil of democracy is the tyranny of the majority, or rather of that party, not always the majority, that succeeds, by force or fraud, in carrying elections.
—The History of Freedom in Antiquity, 1877

It’s apt, as Pope Benedict found it to be in his address to the UN General Assembly in 2008 warning about the consensus of the few in power not necessarily representing what’s best for the people they govern.

Which gets us to this week’s Supreme Court ruling.

There is much to unpack here. Some quick picks for first analysis:

NRO editors were succinct.

The Supreme Court declined to rule that every state in the country must recognize same-sex marriage, but do not be fooled. Five justices have taken the position that there is no rationale other than hostility to homosexuals for defining marriage as the union of a man and a woman. When they believe the time is right to issue a more sweeping ruling, they will. This issue will no longer be one on which democratic deliberation is allowed.

There’s the throwdown. They decided a pair of cases, one involving Prop 8 and one involving DOMA. There are reams of commentaries to digest, but here’s a blast of clarity:

Justice Anthony Kennedy, writing for the four Democratic appointees and himself, argues that the motivation for the law was a “bare congressional desire to harm a politically unpopular group.” The Court is not saying merely that supporters of the historic understanding of marriage are wrong, or even merely that this understanding runs afoul of the Constitution (in some unspecified way: As Justice Antonin Scalia’s dissent notes, Kennedy’s opinion is hard to pin down on the question). It is saying that the supporters bring nothing but bigotry to the discussion.

This follows the type of wording Kennedy has used for at least a decade, so it didn’t surprise Court watchers though it dismayed a segment of them.

But here’s an essential point:

The real argument for continuing to treat marriage as the union of a man and a woman is that marriage and marriage law exist to channel sexual behavior in a way that promotes the flourishing of children. They exist, that is, to solve a problem that does not arise in same-sex unions: that heterosexual sex often gives rise to children. They exist to uphold the ideal that children need the mother and father who created them to stay in a stable relationship together. Recognition of same-sex marriage means that the institution is no longer about those things.

That just stated the reasons for marriage law and the State’s interest in it. It also revealed the stark reality that marriage is what the consensus defines it as now.

This, I think, is important:

What should have mattered in court was that weighing that question is not their business. Justice Samuel Alito’s dissent got it right. “Same-sex marriage presents a highly emotional and important question of public policy — but not a difficult question of constitutional law,” he writes. The Constitution is neutral on whether governmental recognition of same-sex marriage will undermine the institution of marriage, strengthen it, or have no effect at all; it does not contemplate the question.

We could come to a full stop right there. But let’s move into another analysis piece about what the Court did, by the authors of ‘What Is Marriage?’

Here’s the least reported fact about yesterday’s rulings on marriage: the Supreme Court refused to give Ted Olson and David Boies, the lawyers suing to overturn Prop 8, what they wanted. The Court refused to redefine marriage for the entire nation. The Court refused to “discover” a constitutional right to same-sex marriage. Citizens and their elected representatives remain free to discuss, debate, and vote about marriage policy in all fifty states. Citizens and their elected representatives still have the right to define marriage in civil law as the union of one man and one woman.

So those of you who believe in that had better go for it, because the window is closing. Because as the NRO editors concluded…

The justices have not yet decided that we who disagree are to be permitted no influence whatsoever on the country’s marriage laws, but the clock is ticking, and this Court has no patience for self-government.

Some of my expert guests on radio this week have said justices, particularly Kennedy, are just waiting for the case to be brought that will give them cause to redefine marriage for the entire nation. And inevitably, it will.

But in the meantime, consider what those who want that redefinition are after. Dr. Paul Kengor puts a fine lens on it, one that bears reflection. All other arguments aside for the moment, marriage re-definers are after fatherless or motherless families, if children are involved at all. And that’s something we should all be concerned about. We all used to be, not that long ago, as Kengor points out.

In a speech back in 2008, President Barack Obama was emphatic in championing fatherhood:

“We know the statistics – that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and 20 times more likely to end up in prison. They are more likely to have behavioral problems, or run away from home or become teenage parents themselves. And the foundations of our community are weaker because of it.

He added:

“Of all the rocks upon which we build our lives, we are reminded today that family is the most important. And we are called to recognize and honor how critical every father is to that foundation. … If we are honest with ourselves, we’ll admit that what too many fathers also are is missing – missing from too many lives and too many homes. … We need fathers.

Amen to that. Who would disagree? Back then, no one. So, as Kengor asks…

…why are President Obama and the liberals suddenly pushing relentlessly for fatherless families – or, more specifically, for a new form of American families that are fatherless?

The answer, of course, is gay marriage. With their sudden embrace of gay marriage, a massive shift not only within America, American culture and human civilization, but also within the Democratic party, liberals/progressives nationwide are – whether they realize it or not – simultaneously advocating a redefinition of family that embraces fatherless ones. Think about it: married female-female parents will be households without dads.

Which used to be point – fatherless households – on which liberals and conservatives agreed. It was to be avoided whenever and however possible, because of the importance of fathers.

Kengor already cited Obama on this in 2008. Now he unifies – or universalizes – the message.

In 1984, President Ronald Reagan described fathers as beacons of “strength and well-being” who are responsible for “leadership and direction and teaching them integrity, truth and humility.” He added, “Every father rises to his tallest stature as he selflessly cares for his family, his wife and his children.”…

A decade later, such sentiments were consistently reinforced by Democratic president Bill Clinton, who understood the toll delivered by fatherless homes…

That principle remains unchanged. What has changed, however, is liberals/progressives’ fierce acceptance and advancement of gay marriage. In this rapid push, they are jettisoning this national consensus on fathers, demanding a form of parenting that excludes fathers. As for those who disagree with their new paradigm, they are derided as cruel, thoughtless bigots, with no possible legitimate reason for their unenlightened position.

Actually, what today’s liberals are advocating is far more radical than that. They are pushing not only for fatherless families but also, conversely, motherless families. Think about it: married male-male parents (the other half of gay marriage) will be households without moms.

Everyone reading my words knows that mothers are utterly irreplaceable. That’s a statement of the obvious…

Why would anyone, let alone a country or culture, want to open the door for a reconstitution of parenthood and family that, by literal definition, excludes mothers?

So implied in all this is the whole category of human beings whose rights aren’t as often advocated for, because they don’t have such powerful, well funded and well connected advocates. The children.

As President Obama said in 2008, if we’re honest with ourselves, we’ll admit that children need fathers. Yes, if we’re honest. They need fathers, and mothers.