The Justice Department is expected to file a brief on Friday in opposition to Justice Sonia Sotomayor's perplexing decision to issue a temporary injunction against requiring an order of Colorado nuns to fill out paperwork required by the health care reform law's contraception mandate.
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A careful review of the matter should persuade Justice Sotomayor and her Supreme Court colleagues, who may also become involved now, that the alleged threat to religious liberty is nonexistent and the stay should be lifted while litigation proceeds in the lower courts.
In November, the Supreme Court agreed to hear two challenges to the birth control mandate brought by secular, profit-making companies seeking to elevate the religious views of company owners over societal interests and the well-being of employees.
The Colorado nuns' group, the Little Sisters of the Poor, is a religiously affiliated organization that is exempt from the health law's requirement that employer insurance plans cover contraception without a co-pay. The audacious complaint in this case is against the requirement that such groups sign a short form certifying that they have religious objections to providing coverage for contraceptive services, a copy of which would go to their third-party insurance administrator. The nuns say that minor requirement infringes on religious exercise in violation of the Religious Freedom Restoration Act.
Under that law, the federal government may not "substantially burden a person's exercise of religion" unless the government demonstrates that the burden is the least restrictive means of furthering a compelling interest. The certification requirement, an accommodation fashioned by the Obama administration to bolster the protection of religious exercise without depriving women of an important benefit, does not rise to a substantial burden. A federal trial court denied a preliminary injunction on that basis and a federal court of appeals declined to issue an injunction pending appeal, though decisions in some similar cases have come out differently.
Adding a level of absurdity to the controversy, Little Sisters of the Poor's insurance plan qualifies as a self-insured "church plan" under an insurance statute known as Erisa. The Justice Department has conceded that it has no authority to compel a third-party administrator of such a plan to provide contraceptive coverage. In this case, contraceptives would not be made available even indirectly to the nuns' employees.
Like the cases of the private employers, the suit by the nuns' group boils down to an unjustified attempt by an employer to impose its religious views on workers.
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