Will Religious Liberty Die With Scalia?

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Will Religious Liberty Die With Scalia?

A 4-4 ruling on Little Sisters of the Poor v. Burwell would be a sacrilege.

By David Catron – 2.15.16

The death of Supreme Court Justice Antonin Scalia was more than a tragedy for his family and American jurisprudence. It was a calamity for religious liberty. The Court will soon hear Little Sisters of the Poor v. Burwell, which challenges Obamacare’s contraception mandate. Because Scalia’s death reduces the number of justices to eight, the spectre of a tie vote now looms over the case. If the remaining justices vote as they did in the Hobby Lobby case, the result will be a “per curiam” decision whereby a prior miscarriage of justice by the Tenth Circuit Court of Appeals will stand.

For those unfamiliar with the term “per curiam,” it is defined by the Legal Information Institute at the Cornell University Law School thus: “A decision delivered via an opinion issued in the name of the Court rather than specific judges… Usually, though not always, they deal with issues the Court views as relatively non-controversial.” That such a ruling would be issued in a case involving the Obama administration’s brazen violation of the religious rights of an organization of nuns who provide free nursing home care to destitute seniors will be seen as outrageous by many.

The Little Sisters would be forced to violate their faith by subsidizing the distribution of abortifacients, sterilization, and contraceptives to their employees or face ruinous IRS fines. The government exempts a wide variety of religious ministries from the contraception mandate. But the Obama administration insisted that this organization run by Catholic nuns, which has been providing free health care to elderly patients of every race and religion since 1839, is somehow not eligible for the usual exemption. Incredibly, the Tenth Circuit Court of Appeals ruled in favor of the government.

The Supreme Court first became involved in the case in December of 2013, when Justice Sotomayor issued a temporary injunction preventing the Obama administration from fining the Little Sisters into oblivion while they fought the government in court. Then, when the Tenth Circuit issued its bizarre opinion, their legal representatives petitioned SCOTUS to hear the case and the Court agreed to do so. Before Justice Scalia’s tragic death, there was a reasonable chance that the Little Sisters and six other organizations with which the Court consolidated their case might prevail.

Now, unless one of the four liberal justices — Breyer, Ginsburg, Kagan, and Sotomayor — casts an uncharacteristically nonpartisan vote, a 4-4 vote is all but inevitable. Obamacare’s apologists take the position that this is much ado about nothing. They would have us believe that the Obama administration has generously granted an “accommodation” for organizations like the Little Sisters of the Poor and that they won’t be required to provide abortifacient and contraception coverage if they simply apply for this special dispensation. This claim is presumptuous and disingenuous.

In reality, the accommodation is little more than a fig leaf. In fact, the very act of applying for the accommodation would make the Little Sisters complicit in providing the coverage to which they object. In order to apply for this special dispensation, they would have to submit a document called the EBSA 700. Sister Constance Veit, the organization’s communications director, explains why this is just unacceptable: “Contrary to how it is often presented, Form 700 is neither a simple declaration of conscientious objection, nor an ‘opt out’ regarding the HHS Contraceptive Mandate.”

Because the Little Sisters would be forced to provide this document to their third-party health insurance administrator, which would then be required by law to provide “free” access to abortion-inducing drugs and other contraceptives to the organization’s employees, “Signing it would allow HHS to commandeer the infrastructure of our health care plan in order to use it to distribute abortifacients and contraceptives to our employees. In other words, signing Form 700 would involve us in formal cooperation with wrongdoing, which is never permissible under Catholic doctrine.”

The irony of all this is that the First Amendment and the Religious Freedom Restoration Act (RFRA) were both conceived and enacted to protect individuals and organizations from having to justify their religious convictions or how they exercise them to the government. And yet Hobby Lobby, the Little Sisters of the Poor, and many other organizations have been harassed by Obama administration apparatchiks to the point that they have been forced to seek the protection of the Supreme Court. Now, that Justice Scalia is gone, they may well be effectively robbed of their day in court.

President Obama, in his remarks on Scalia’s death said the following: “He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law. Tonight, we honor his extraordinary service to our nation and remember one of the towering legal figures of our time.” Justice Scalia’s former colleagues should honor his service by refusing to use a per curiam decision to dodge a case about which they know he had very serious intellectual, legal, and moral concerns.

Scalia understood that Little Sisters of the Poor v. Burwell has always been about religious liberty, and would consider it a dereliction of duty to let the partisan judges of the Tenth Circuit Court of Appeals have the final word on the case. The surviving justices owe Scalia and the nation an honest ruling.

The American Spectator Foundation is the 501(c)(3) organization responsible for publishing The American Spectator magazine and training aspiring journalists who espouse traditional American values. Your contributions are tax deductible to the extent permitted by law. Each donor receives a year-end summary of their giving for tax purposes.

Copyright 2013, The American Spectator. All rights reserved.
Source URL: http://spectator.org/articles/65483/will-religious-liberty-die-scalia

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This country died with him.

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Related:

A Giant has Fallen — The Death of Justice Antonin Scalia and the Future of Constitutional Government
Justice Scalia firmly believed in the right of the people to establish a constitutional government that would recognize the ultimate authority of the people, not an elite of unelected judges, to establish laws.

By Albert Mohler

“Presidents come and go, but the Supreme Court goes on forever.” So advised a man who ought to know, William Howard Taft. After serving as President of the United States, Taft went on to serve — probably more effectively — as Chief Justice of the United States. But, if the Supreme Court goes on forever, justices do not. Americans were reminded of this truth on Saturday when news broke that Justice Antonin Scalia had been found dead in Texas, where he had gone on a hunting trip.

The 79-year-old justice had served almost 30 years on the nation’s highest court and was by any measure one of the most influential justices in that court’s history. Indeed, Antonin Scalia is almost surely the most influential justice to sit on the Supreme Court in many decades. The loss of his influence, as well as his his crucial vote, is monumental.

Scalia’s significance lies in his commitment to originalism, also known as textualism — the belief that the Constitution of the United States is to be read and understood and applied in keeping with the language, syntax, and vocabulary of its text as understood to be intended by the framers. This was how the Supreme Court had operated for decades, without even having to express originalism as a method. All that changed in modern decades as the Court and the nation’s liberal legal culture adopted an understanding of the Constitution as an evolving document that was to be interpreted in light of current social needs — even if this required the abandonment of the Constitution as a regulative document.

Progressivists, as they styled themselves, argued that the Constitution is to be interpreted as a “living” text that can be made to mean whatever modern jurists and legal theorists want the text to mean. As Scalia would later explain, judges had grown accustomed to remaking the world in their own image, abandoning constitutional government.

This process began earlier than even most conservatives recognize. One of the earliest proponents of this trajectory was President Woodrow W. Wilson. By the time Antonin Scalia arrived at the Harvard Law School in the late 1950s, the idea of the “living” Constitution was established orthodoxy.

The moral revolution now reshaping Western societies could not have occurred without a cadre of judges and justices eager to advance that revolution by the assertion of radical ideas of personal liberty, autonomy, identity, and self-expression that the framers of the Constitution would never have recognized. The Constitution was bent and contorted to serve that revolution. New “rights” were invented that had no basis in the text of the Constitution itself, and would have been anathema to its original authors.

In the 1960s the Supreme Court invented an individual “right to privacy” that was used to overturn state laws against birth control. In 1973, the same argument was used by the Court’s majority in the Roe v. Wade decision legalizing abortion. In 2003, the Court struck down laws criminalizing sodomy and in 2013 and 2015 the Court issued rulings that eventually legalized same-sex marriage throughout the nation.

Even before his nomination to the Supreme Court in 1986, Antonin Scalia was known for his brilliant defense of originalism and what was often called a “strict constructionist” reading of the Constitution — though he preferred to call his approach “textualism.” Put simply, Scalia argued that the American commitment to democratic self-government required that the Constitution be honored as the nation’s authoritative text. He firmly believed in the right of the people to establish a constitutional government that would recognize the ultimate authority of the people, not an elite of unelected judges, to establish laws.

As he often said, his concern was not necessarily what policy the people should adopt through electing representatives who would produce legislation. His concern was who decides. It should be the people through their elected representatives, not an elite of judges. “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society,” he warned.

In his remarkable and haunting dissent to the 2015 Obergefell decision legalizing same-sex marriage, Justice Scalia made this point emphatically: “This is a naked judicial claim to legislative–indeed super-legislative–power; a claim fundamentally at odds with our system of government.” He continued: “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”   ...

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