Good news for Wheaton College, the Evangelical school, in the wake of the Hobby Lobby decision:
In a decision that drew an unusually fierce dissent from the three female justices, the Supreme Court sided Thursday with religiously affiliated nonprofit groups in a clash between religious freedom and women’s rights.
The decision temporarily exempts a Christian college from part of the regulations that provide contraception coverage under the Affordable Care Act.
The court’s order was brief, provisional and unsigned, but it drew a furious reaction from the three female members, Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan. The order, Justice Sotomayor wrote, was at odds with the 5-to-4 decision on Monday in Burwell v. Hobby Lobby Stores, which involved for-profit corporations.
“Those who are bound by our decisions usually believe they can take us at our word,” Justice Sotomayor wrote. “Not so today.”
Here, in simpler form, is what the Court’s new order required:
First, the college need not file a form prescribed by the government to claim the accommodation that would shift the legal duty to its insurer or plan administrator to provide the actual birth control services. The college objected even to filing that form, saying it put the college into the middle of assuring access to those services.
Second, the college need only write a letter to the government to claim an exemption.
Third, since the college has already written and sent such a letter, that is enough to block the government from enforcing the mandate in any way against the college.
Fourth, the order declared that it was not intended to affect “the ability of the [college's] employees and students to obtain, without cost, the full range of contraceptives [approved by the federal Food and Drug Administration].”
And, finally, to make it possible for that access to remain, the Court said the government may rely on the college’s letter to the government as the mechanism for facilitating the access to the birth control services. There is nothing in existing government regulations that allows such a letter instead of the government form, and nothing in those regulations that says such a letter is enough to guarantee access to birth control. But the Court order appears to be, in effect, a rewrite of those regulations.
Ed Whelan says that the dissenters — which notably do not include Justice Breyer, who dissented from the majority in Hobby Lobby — contradict themselves. Excerpt:
Sotomayor contends that the Court “retreats” from its position in Hobby Lobbyin which it “expressly rel[ied] on the availability of the religious-nonprofit accommodation.” But as the Ginsburg dissent in Hobby Lobby (which Sotomayor and Kagan joined) complained about, the Hobby Lobby majority expressly did not decide whether the accommodation satisfies RFRA. All it did was recognize that the accommodation showed that the HHS mandate was not the least restrictive means of advancing the supposed governmental interest.
In short, it is Sotomayor, Ginsburg, and Kagan, in falsely contending that the majority “retreats” from its position in Hobby Lobby, who in fact contradict their position in that case.
It’s worth noting that this injunction is temporary, no doubt pending the Court’s resolution of the Little Sisters of the Poor case. But it seems to my untrained eyes that this bodes well for the nuns.
This is good news, as far as I’m concerned. As a general rule, I hold an expansive definition of religious liberty. As a technical matter, I think that Whelan is right, and that there’s nothing in Hobby Lobby that contradicts the subsequent Court order. Still, I can understand why the three dissenting justices feel sandbagged. Justice Alito, in the majority opinion, held up the HHS carve-out for religious non-profits as an alternative HHS might have offered for-profit companies, but did not. Now the Hobby Lobby majority, joined by Justice Breyer, rejects even that possibility.
But not definitively, and that’s why I think there’s less here than meets the eye. Again, the injunction is temporary, and is no doubt pending the full Court hearing the Little Sisters case, which will decide whether or not the government’s carve-out for religious non-profits is a reasonable and sufficient accommodation of religion. Given the moral stakes of the question, it makes sense that the Court would grant temporary injunctions pending its decision on the overall question. It’s entirely possible that the Court will rule in favor of the government in the Little Sisters case. The fact that Justice Breyer, a Hobby Lobby dissenter, signed on with the majority in issuing the temporary injunction is a clue to the limited nature of this decision. It is too early for either side to claim victory or defeat based on this temporary injunction.