On New Year’s Eve, Supreme Court Justice Sonia Sotomayor gave the Little Sisters of the Poor and their co-plaintiffs in a suit against the US government an emergency injunction against penalties set to begin the next day.
Because this case involved religion and sex, it got a lot of coverage from the national press and from bloggers everywhere. Many of them had only the slightest grasp of either the case or the principles involved. Or both.
Few seemed to understand why this case and others like it matter. Here’s why all Americans should care:
Say you run religious charity that takes care of the poorest and most neglected. You, yourself, are a vowed member of a Catholic religious order but you pay lay people (nurses, aides, and so on) to provide some of the care, and you pay for medical insurance for these employees.
The US government makes a new regulation that says all employer-paid healthcare plans must include contraceptive drugs and services, elective sterilization, and “Plan B” pills. You can’t pay for those things, because the religion you profess teaches that they are wrong. Sins, in fact. And paying for other people’s sins makes you complicit in them. The government exempts churches from this mandate but as you are not a church, you are not exempt. But you refuse to pay.
The government says, “Fine. You’re not religious enough that we’ll exempt you, but you’re religious enough that we will accommodate you. Instead of paying for them, sign a piece of paper authorizing your insurance provider to pay for them. There you go—you’re off the hook!”
You say, “Authorizing someone else to do something makes me responsible for it. So, no.”
The government says, “The part you think is a sin—getting the services and drugs—is up to your employees, not you. They may never get any of them. If they do, they’re responsible, not you. So sign the paper.”
You say, “Authorizing someone else to do something makes me responsible for it, even if they don’t actually do it. So, no.”
The government says, “You have a special kind of insurance provider, which won’t provide those things anyway. So sign the paper, already. No harm done.”
You say, “Authorizing someone else to provide something makes me responsible for it, even if they don’t actually provide it. So, no.”
And as the direct result of your refusal to “sign the paper, already,” you face millions of dollars in fines.
Is that a violation of your freedom of religion, as guaranteed by the Constitution of the United States?
You say yes — you are Catholic sisters, the Little Sisters of the Poor, for Heaven’s sake. You can’t and won’t pay for IUDs and sterilizations and all the rest.
The government says no—people have the right to believe whatever they want to, but we have decided these things are important. So important that they must be given, or at least offered, to all women for free. And we’ve decided that employers must pay for them. We’ve given people annoying enough to refuse us an alternative, they should take it.
The Case vs. Public Opinion
Articles, blog posts, and web sites are full of opinions and objections, some of which are relevant to the case and some of which are not. People discuss them indiscriminately, which can lead to lively reading but which can be confusing. What points are important for the case that will be heard by the Supreme Court? What are of more general interest? And what exactly did Justice Sotomayor do?
The last part is simplest: She issued an emergency injunction, initially one that was set to end three days later. The LIttle Sisters’ case —a class action case that involves hundreds of other organizations —was not decided before the Jan. 1st date that meant the government could begin assessing penalties for not complying with the HHS mandate to provide the drugs and services.
Many other organizations suing the government over the mandate were granted injunctions—which stop penalties from building up while a case is still in court. But the court hearing the Little Sisters’ case didn’t order one. The Little Sisters asked the Supreme Court to issue an emergency injunction, which is one issued when a harmful consequence is about to happen to someone who’s suit is ongoing and has merit.
Supreme Court Justices can issue emergency injunctions on their own or together. Justice Sotomayor issued one on her own on a Tuesday night, and required the US government to present her with its argument on Friday morning. It did.
The injunction will continue until Justice Sotomayor issues a decision ending it or giving it an end date. She can take as long as she needs to to make that decision, there is no deadline. She is not deciding on the case itself, only on whether the Little Sisters and the other plaintiffs should have fines levied against them while the case continues.
Some Arguments Relevant to the Case
About that case… At bottom, it’s about sin. Can the federal government of the United States make you pay directly for something your religion teaches is a sin? Some hotly discussed topics related to this question are relevant to the case, some aren’t. Here are some points commonly brought up in blogs and articles and on television:
Q: Why should an employer keep women from getting drugs and services he thinks are wrong?
A: No employer is trying to keep women from getting drugs and services he thinks are wrong. Women can buy any drugs and services they want to.
Q: Why should employers have any say in my benefits? They’re MY benefits.
A: Because your employer pays for your benefits and decides what they will be. That’s what benefits are:
Q: Why do you say that? Benefits are just like salary.
A: Benefits not like salary. They are something extra, provided by the employer, who decides what they do and do not consist of. A salary or wage is money provided by your employer and your employer has no say in what you spend it on.
Question: These drugs and services are my right, the government says so.
Answer: Whether or not the government can say so is part of what all these cases are about.
Q: What if I am a Jehovah’s Witness and don’t believe in blood transfusions. Why can’t I offer employee insurance that doesn’t include blood transfusions?
A: There is a great deal of case law on this and similar religious beliefs, which are different in important ways from the Little Sisters’ case and therefore are not relevant. Before bringing them up, check to see what has already been established legally in these cases.
Q: Why should Catholics on the Supreme Court tell anyone what to do?
A: Justice Sotomayor isn’t telling everyone what to do, she granted the Little Sisters a temporary injunction. It doesn’t apply to anyone who is not covered under their class action suit, and that suit is still going on. Justice Sotomayor did not issue the injunction because she is Catholic, but because she is a judge.
Q: Why do the Little Sisters think they are special and don’t have to obey the law?
A: The Little Sisters are not “special.” They have the same religious liberty rights as all Americans and want them to be respected.
Q: Why can’t the Little Sisters just sign the paper already? It’s no big deal.
A: The question isn’t whether you think signing the paper is a “big deal,” but whether signing it infringes religious liberty. There are legal and theological definitions for “sin,” “infringement”, and other terms used in this case — they do not mean whatever you or I think they ought to mean. And in the same way, the Little Sisters are not going to sign a paper just because you or I think they should.
Q: Why should I care If the Little Sisters lose their ridiculous suit? This is the 21st century and they are being medieval and unreasonable.
A: The First Amendment wasn’t designed to protect people from obvious violations of religious liberty, it was designed to protect people from violations of religious liberty that most people agreed with. The fact that you think that the Little Sisters are out of line might just mean that you are an example of why the Amendment was created in the first place. And if the government wins, passing laws that infringe on people’s religious (and other) rights will be easier. Next time, it could be something you do care about — and what will you do then?