Commentary: Religious liberty is the latest Obamacare victim
A group of Catholic nuns, the Little Sisters of the Poor, wants relief from the Affordable Care Act's mandate that it offer contraceptive coverage to its employees. The nuns lost a court case this week -- and everyone who cares about religious freedom should be troubled by the reasons why.
The Religious Freedom Restoration Act lets religious believers seek exemptions from laws or regulations, but it also lets courts deny those exemptions for many reasons. The courts can conclude that the religious objection is insincere, a cover for some non-religious motive for shirking legal obligations. They can conclude that the government isn't subjecting the objectors to serious harm for following their consciences. They can conclude that the violation of conscience is necessary to pursue an important public purpose.
What they cannot do is tell religious Americans that they're wrong about what they consider to be a violation of their consciences. That would make the court the arbiter of what constitutes a respectable religious belief -- and keeping the government out of that business is largely the point of the law and tradition of religious freedom.
But that's exactly what a federal appeals court has just done in the Little Sisters of the Poor case. It's telling the nuns that they shouldn't regard a government order as a violation of their consciences.
The Affordable Care Act gave the Department of Health and Human Services the authority to require insurers to cover "preventive services" for women. President Barack Obama's administration used this authority to require coverage of contraceptives. Churches were exempt from the requirement, but religious nonprofits such as the Little Sisters were not. Eventually, the government said such groups could have an "accommodation" for their beliefs if they filed a form registering their objection and giving the government or a third party access to their insurance network, so that they could use that network to provide employees contraceptive coverage.
In other words, the nuns would have to facilitate behavior they objected to. They refused.
In this week's decision, Judge Scott Matheson Jr. writes that the form makes opting out of the contraceptive mandate "at least as easy as obtaining a parade permit, filing a simple tax form, or registering to vote."
But nobody has ever denied that filling out the form would be easy. The nuns object to doing so because they think it would be immoral. The government is demanding the form because health bureaucrats think it will facilitate contraceptive coverage -- but that's exactly why the Little Sisters don't want to oblige. They think facilitating birth control is wrong.
In a Supreme Court case last year, the administration made an argument very similar to what the appeals court has just ruled. They thought that the Hobby Lobby chain could be required to provide coverage for contraceptives over the objections of its religious owners, because the owners' involvement in the contraceptive use was so indirect. Employees would be the ones actually making the decision to use the coverage. The majority of the court soundly rejected that argument because the government has no right to tell religious believers what degree of involvement in an immoral decision is too much.
If the Little Sisters case reaches the Supreme Court again, that's how the justices should rule again -- and repeat as necessary for lower courts to get the message.
Ramesh Ponnuru, a Bloomberg View columnist, is a senior editor for National Review, where he has covered national politics for 18 years, and a visiting fellow at the American Enterprise Institute. For more columns from Bloomberg View, visit http://www.bloomberg.com/view