In an unusual move, five federal judges have said their court should have given greater attention to the Little Sisters of the Poor’s religious freedom lawsuit against an Obama administration mandate that requires them to violate their Catholic beliefs, or face heavy fines.
“When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion," five judges with the Denver-based Tenth Circuit Court of Appeals said in a Sept. 3 dissent.
The judges said their court’s earlier panel ruling against the sisters is “clearly and gravely wrong – on an issue that has little to do with contraception and a great deal to do with religious liberty."
On July 14 a majority of the three-judge panel had ruled against the sisters. The sisters had filed a lawsuit challenging the mandate which requires employers to offer health insurance plans covering contraception, sterilization, and some drugs that can cause early abortions.
Employers who fail to comply with the mandate face crippling penalties. In the case of the Little Sisters, the fines could amount to around $2.5 million a year, or about 40 percent of the $6 million the Sisters receive each year in order to run their ministry.
The court panel said that the 2014 Supreme Court decision protecting Hobby Lobby and other objecting companies from the mandate did not apply in the Little Sisters’ case. The panel said the 2014 decision was based on the lack of a religious accommodation for for-profit companies, and argued that the Little Sisters should take advantage of the religious accommodation the Obama administration had granted to non-profit employers.
The sisters have insisted the accommodation is insufficient, and they responded to the court panel’s decision with an appeal to the Supreme Court.
On its own initiative, the Tenth Circuit voted on whether the entire court of 12 judges should re-hear the case. The court on Sept. 3 still voted against a re-hearing, prompting the five judges to write their dissent.
Mark Renzi, senior counsel at the Becket Fund for Religious Liberty and lead counsel for the Little Sisters of the Poor, welcomed the action.
“These judges understand that courts and bureaucrats should not be telling nuns what the Catholic faith requires," Renzi said Sept. 4. He said the five judges’ opinion offered “important support" for the Little Sisters’ appeal to the Supreme Court.
The Becket Fund characterized the five judges’ action as “almost unprecedented."
The sisters are among several hundred plaintiffs who have challenged the federal contraception mandate, including several Catholic dioceses, Catholic Charities affiliates, universities, and the EWTN Global Catholic Network.
The Little Sisters of the Poor do not qualify for a full religious exemption to the mandate because they are not affiliated with a particular house of worship.
The federal government’s putative accommodation means that faith-based employers can sign paperwork to pass the burden of providing the objectionable coverage to insurers, who must then offer it directly to employees without cost.
The Little Sisters obtain their health coverage from Catholic organizations, Christian Brothers Services, and Christian Brothers Employee Benefit Trust. They have said the alleged accommodation still requires them and their Catholic partners to cooperate in providing drugs and procedures whose use Catholic teaching recognizes as sinful.
The five judges said the panel majority refused to acknowledge the religious sisters’ belief that it would be sinful to use the accommodation. Rather, the panel “reframes their belief."
The dissenting judges objected: “it is not the job of the judiciary to tell people what their religious beliefs are."
Other parties to the sisters’ lawsuit include the Christian Brothers benefits provider and the Baptist ministries GuideStone, Reaching Souls, and Truett-McConnell College.
Sister Loraine Marie Maguire, mother provincial of the Little Sisters of the Poor, said the religious women “dedicate our lives to serving the neediest in society, with love and dignity."
“We perform this loving ministry because of our faith and simply cannot choose between our care for the elderly poor and our faith, and we shouldn’t have to," she said July 23. “We hope the Supreme Court will hear our case and ensure that people from diverse faiths can freely follow God’s calling in their lives."
The Little Sisters of the Poor have cared for the elderly poor and dying around the world for 175 years.