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Hijacking the Little Sisters' Religion

The opinions expressed by columnists are their own and do not necessarily represent the views of

When President Barack Obama addressed the nation Sunday night about the terrorist attack in San Bernardino, he was careful to build a wall of separation between the terrorists who had murdered 14 Americans and the religion they claimed to embrace.


"But it is clear that the two of them had gone down the dark path of radicalization, embracing a perverted interpretation of Islam that calls for war against America and the West," Obama said.

Were the president to exhibit this same zeal in defending the integrity of Christianity, he would drop his administration's legal pursuit of the Little Sisters of the Poor.

He would also let all Americans decide for themselves whether it is in keeping with their moral principles to buy, provide or take actions intended to facilitate the provision of insurance that covers sterilizations, contraceptives and abortion-inducing drugs and devices.

Yet the Obama administration has pursued a case into the Supreme Court that, if the administration prevails, would prohibit Catholic nuns from freely exercising their Catholic faith.

It could also move the United States toward accepting the fallacious argument that federal judges ought to have the authority to interpret what are and are not legitimate religious views.

The Little Sisters are bravely resisting.

In practical terms, the government wants to force this order of nuns to take one of two actions. It can sign a document instructing the third-party administrator of its self-insured employee health plan that the administrator is obligated to provide coverage for sterilizations, contraceptives and abortion-inducing drugs and devices. Or it can give the Department of Health and Human Services the information it would need to tell the third-party administrator it is obligated to do so.


Either way, the government wants to force the nuns to take an action whose purpose is to facilitate distribution of sterilizations, contraceptives and abortion-inducing drugs and devices.

"Our beliefs forbid us from participating, in any way, in the government's program to promote and facilitate access to sterilization, contraceptives, and abortion-inducing drugs and devices," the Little Sisters have said.

As this column noted in July, the sisters' lawyers explained their moral objection in a brief submitted to the U.S. Court of Appeals for the Tenth Circuit, which heard their case.

"This is necessary not only to prevent complicity in grave sin, but also to avoid even appearing to condone wrongdoing, which would violate the Little Sisters' public witness to the sanctity of human life and could mislead other Catholics and the public," said the brief. "Such scandal would itself be sinful and would undermine the Little Sisters' ability to carry out their ministry."

The majority of a three-judge panel ruled against the sisters, and, in September, the full appeals court voted not to take up their case.

The appeals court refused to accept the proposition that forcing an order of Catholic nuns to take an action that is expressly intended to convert their health care plan into a conduit for delivering abortion-inducing drugs places a "substantial burden" on the sisters' exercise of their faith. They argued that this is especially true because the Christian Brothers, who currently act as the third-party administrator for the sisters' plan, are themselves exempted from the mandate to provide sterilizations, contraceptives and abortifacients.


Therefore, the judges argued, the action the government wants to force the nuns to take will not result in the government's intended purpose: the provision of sterilizations, contraceptives and abortifacients.

When the full appeals court voted not to take up the case, Judge Harris Hartz, joined by four other judges, dissented.

He argued that the court was taking a step toward empowering federal judges to rewrite the moral rules of a religion.

"All the plaintiffs in this case sincerely believe that they will be violating God's law if they execute the documents required by the government," said Judge Hartz. "And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs' free exercise of religion?

"Yet the panel majority holds otherwise," he wrote. "Where did it go wrong? It does not doubt the sincerity of the plaintiffs' religious belief. But it does not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution of the documents is sinful. Rather, it reframes their belief."

The U.S. Court of Appeals for the 10th Circuit hijacked the Catholicism of the Little Sisters of the Poor. It made itself the interpreter of what that faith truly demands.

In its own brief to the appeals court, the U.S. Conference of Catholic Bishops had warned of this.


"Indeed, the test repeatedly championed by the government would transform the Religious Freedom Restoration Act's substantial burden analysis into an exercise in amateur theology," said the USCCB brief. "The Constitution, however, does not permit federal courts or government officials to be arbiters of matters of faith."

It is time for the Obama administration to entirely drop its sterilization-contraceptive-abortifacient mandate and declare that federal judges have no right to rewrite the Catholic faith.

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