Will the Supreme Court uphold religious freedom?


Last year, President Barack Obama scrambled to quell a fierce outcry from some religious groups over a mandate in the Affordable Care Act that health insurance cover contraceptives. The administration approved an exemption for churches, but the requirement still falls on many religious organizations and on employers who object as a matter of faith.

The requirement has sparked dozens of lawsuits from groups that say it infringes on their religious freedom. In November, the U.S. Supreme Court agreed to hear a challenge from two companies that objected to the law as a violation of their First Amendment rights.

Late Tuesday, in a surprise, Justice Sonia Sotomayor temporarily blocked the administration from forcing religious-affiliated groups to provide such coverage to their employees. That may open the door to a second legal challenge to the contraceptive mandate.

Sotomayor issued her order in a case involving a Colorado order of nuns, the Little Sisters of the Poor. Under the Obamacare rules, the Little Sisters and other religious organizations need not directly provide insurance coverage of contraceptives, but they must sign a certification that allows their insurers to offer those services. The legal challenge asserts that the mandate, which includes some contraceptives considered to be abortifacients, forces the groups to violate their religious beliefs.

They have a strong constitutional argument and they’ve found the right venue: the U.S. Supreme Court.

Sotomayor has ordered the Obama administration to file a brief by Friday, responding to the challenge from those religious groups. Her order doesn’t necessarily indicate she accepts the legal argument. She gave the religious organizations temporary relief from the rules while the Supreme Court decides whether to hear the case.

The administration has set out a complicated standard for whether a company or organization should be exempt from these rules. On one end stand for-profit corporations, which aren’t exempt. At the other end, churches and some other religious institutions, which are excused. In the middle are many groups that have a religious affiliation and a faith-based mission, such as Catholic-affiliated universities and hospitals, and the Little Sisters of the Poor in Colorado.

Earlier this week, Archbishop Joseph Kurtz, the head of the U.S. Conference of Catholic Bishops, complained in a letter to Obama that while the administration had “relaxed the rules” for many Americans’ health plans, “one category of Americans … has been left out in the cold: Those who, due to moral and religious conviction, cannot in good conscience comply” with the contraception mandate.

That provision, he added, “harshly and disproportionately penalizes those seeking to offer life-affirming health coverage in accord with the teachings of their faith.”

The administration has made numerous exceptions to the rules of Obamacare — including delay in the insurance mandate for employers and many individuals. About a year ago, the Department of Health and Human Services announced it would draw a distinction between religiously affiliated employers and secular employers. But it still sought a guarantee that their employees would have contraceptive coverage.

We’re not arguing against insurance coverage of contraceptives. But a government mandate that religious organizations violate the tenets of their faith is an unconstitutional reach.

The administration should provide a much broader conscience exemption for the insurance mandate. Exempt from these rules is any entity that would be forced to contravene its religious teachings and beliefs. Abide by the constitutional principle: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Obamacare is the law of the land. But the constitutional protection of religious freedom shouldn’t be parsed or shaded by the law.