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Judging the faith of nuns

A group of appellate judges recently decided to take up theology while writing a legal opinion. As might be expected, they got into trouble.

The case concerns the Little Sisters of the Poor, a group of nuns dedicated to caring for the elderly poor for 175 years. Their Christian faith undergirds their work and leads them to serve elderly men and women of all faiths. As Catholics, the group resisted a federal regulation in the Affordable Care Act — known as the HHS Mandate — that forced them to either pay massive fines or include contraceptives and what they viewed as abortion-causing drugs and devices known as "abortifacients" in the health coverage that they provide to their employees. The nuns sought an exemption from the mandate in order to continue their charitable work without violating their faith, filing a federal lawsuit with the lead plaintiffs being their houses in Baltimore and Denver.

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The dispute between the Little Sisters and the government reached the U.S. Court of Appeals for the 10th Circuit — one level below the Supreme Court — just over a year ago, when the Little Sisters requested temporary protection from the fines while their case progressed through the courts. When the 10th Circuit failed to extend this emergency relief, the Supreme Court stepped in to grant protection.

Then the Supreme Court sent the case back down for argument on the merits. But once again, last month, the 10th Circuit ruled against the nuns. On what grounds? No one questioned the sincerity of their faith. The court did not even address whether the government had an extremely good reason to force the Little Sisters to provide access to the contraceptives and abortifacients (it doesn't), or whether there were any other ways to deliver those things to the Sisters' employees who actually want them (there are). The judges instead said that the nuns would not truly violate any tenets of their faith by signing off on the contraceptive mandate. That bears repeating: Federal judges ruled that the Little Sisters would not be sinning if they complied with the mandate. In essence, the judges claimed that their interpretation of Catholic moral teaching was better than that of the nuns. In doing so, they attacked an element of Catholic theology strongly supported by the U.S. Conference of Catholic Bishops, well-established Catholic teaching and numerous other authorities within the church.

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This is a very dangerous ruling. The judges embraced a view of their own role that, in the words of another federal judge, renders religious freedom "exceedingly shallow — perhaps nonexistent." If courts may define what actions constitute sin, religious freedom will be gone for anyone whose theology does not fall in line with that of the judge. If a believer objects, she could be told that the offending law does not force her to violate the "properly understood" tenets of her religion. But that's not a legal determination, and it results in a court battle that amounts to a theological debate over the interpretation of scripture. This is precisely the inquiry in which judges and governments may not engage in any society that values religious freedom.

The way courts normally consider religious liberty claims is through a carefully calibrated approach designed to balance freedom with other very important interests. In the first step in this approach, a believer identifies a sincere belief threatened by the government and shows that the government is exerting significant pressure to violate that belief. In the next step, the government can override that sincere religious objection if it can show that the law serves a compelling interest and that no alternative means could achieve that interest without infringing on religious liberty. Here, the court erred on the first step. The judges told the Sisters what actions violate, or do not violate, the Sisters' own faith.

The Little Sisters of the Poor have now asked the Supreme Court to step in again, this time to bring the discussion to the real merits of the case. The proper legal question here isn't whether the government or judges agree with the Sisters' Catholic theology. It's whether the government's interest in providing contraceptives and abortifacients through the Sisters' own employer-provided health insurance justifies forcing the Little Sisters to either violate their faith or face crippling fines. By redefining Catholic beliefs, the 10th Circuit judges never gave the nuns a chance. The Supreme Court should not follow the same path.

Josiah Kollmeyer is a student at Harvard Law School and a summer associate with the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor. His email is jkollmeyer@becketfundcommunity.org.

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