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Becket Fund: "Respondents are simply blind to the religious exercise at issue."

An op-ed in today's edition of The Wall Street Journal expresses shock at the Justice Department's insistence that Supreme Court Justice Sonia Sotomayor lift her injunction on behalf of the Little Sisters of the Poor:

This week Justice Sonia Sotomayor issued an unusual injunction merely hours before the Affordable Care Act's birth-control mandate was supposed to apply to an order of Catholic nuns. The Justice Department replied on Friday, and the Administration's disdain for religious conscience still retains the power to shock.

Later this term the Supreme Court will hear arguments related to the ObamaCare requirement that all employer health plans must furnish contraception or else pay a tax penalty, but those cases involve corporations. The Little Sisters of the Poor run a nonprofit Colorado nursing home and hospice and therefore ought to be exempt under what the White House calls its "accommodation" for religiously affiliated institutions like parochial schools, hospitals and charities.

The piece explains some of the details of the case, then states: "Boiled down, the Justice Department's legal response on Friday was: Shut up and sign the form. Solicitor General Donald Verrilli argues the Sisters' claims have 'no legal basis.'"

Which is one reason the piece is titled, "Little Sisters of the Government": the government—in this case, the Democratic Party—passes laws that are illogical, contrary to good conscience, and overtly antagonistic to Catholic teaching and the beliefs of many other Christians, and then says, "Well, hey, it's the law." If simply passing a law makes something morally right, then might does indeed make right. The piece further notes:

The Administration could have honored the Little Sisters' belief that they are harmed because empowering a third party to provide contraception is the sin. Then it could later close the loophole. But the White House wants to make an ideological statement, and so Mr. Verrilli is in effect telling the nuns that they don't understand their own church teachings and that signing the contract doesn't really tread upon their religious beliefs.

Yesterday, the The Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor, issued a statement (PDF file) containing the following:

That injunction should remain in place. First, in 18 of 19 other cases raising this issue, the lower courts have granted similar injunctions. An injunction here would standardize the cases, preserve the status quo and allow them to proceed without any other religious groups being coerced to violate their consciences. The Little Sisters’ chance to exercise religion now—a right guaranteed by federal law—will be lost forever if not protected today. It will be cold comfort to the Little Sisters to learn that they may be able to resume exercising their religion in the future.

In response to this request for normalized treatment across an important group of cases—which would save the Applicants from being forced to violate their religion or suffer enormous fines — the government argues, essentially, that its form is meaningless and Mother Loraine should just sign it. That argument rests on the spurious claim that the certification form at issue is merely an “orderly means of permitting eligible individuals and entities to declare that they intend to take advantage of” an “exemption” from the mandate. Resp. 33. That claim is false: it is contradicted by Respondents’ public statements, by the text of the regulations, by the text of the form, and by Respondents’ more forthcoming discussion of the form’s legal effect in other courts. … Tellingly, Respondents require no such “orderly means” for those religious organizations (unlike the Little Sisters) whom they have actually “exempted” from the mandate. Resp. 11. Yet Respondents continue to insist that their minimalist characterization of the form must control the Little Sisters’ religious determination about whether they can execute the form, even though six of the seven church plan cases have now entered injunctions protecting those plaintiffs from having to fill out the forms in violation of plaintiffs’ religious faith.

Respondents are simply blind to the religious exercise at issue: the Little Sisters and other Applicants cannot execute the form because they cannot deputize a third party to sin on their behalf.

Is the Justice Department really just "blind to the religious exercise at issue"? Or is the Justice Department and this administration well aware of what they are doing and what this case means in both the short and long term? As the WSJ piece flatly states, "This case is simply a raw assertion of state power directing the religious to follow orders. Thus ObamaCare forces women who have taken a vow of chastity and minister for the dying to implicate themselves in what they consider to be grave moral wrongs."

If the Justice Department cannot see the consquences of it is trying to do, it is truly stupid. But I doubt this is a matter of stupidity. Ideology may be wrong-headed and oblivious to other perspectives, but it is rarely stupid. As German philosopher Erich Fromm noted over fifty years ago (in 1961): "Ideologies are administered by bureaucracies that control their meaning. They develop systems, they decide what is right- and what is wrong-thinking, who is faithful and who is a heretic; in short, the manipulation of ideologies becomes one of the most important means for the control of people through the control of their thoughts."

 
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Carl E. Olson is editor of Catholic World Report and Ignatius Insight.
 
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