The Little Sisters Case Is Not About a Form. It’s About Who Gets to Decide—God or the Government—What That…

The law, lawyers, and the court.
Jan. 28 2014 6:26 PM

God vs. the Government

The Little Sisters case is not about a form. It’s about who gets to decide what the form means.

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U.S. District Judge Lee Rosenthal—one of the Texas judges who sided with the religious objectors in one of the contraception mandate challenges—explained the religious burden this way: “The self-certification form requires the organizations to do much more than simply protest or object. The purpose of the form is to enable the provision of the very contraceptive services to the organization’s employees that the organization finds abhorrent.” In short, the opt-out form is, in reality, an opt-in form, since the coverage is triggered regardless.

Marty Lederman has taken exactly the opposite position in explaining the act of signing the form. He has responded to what he sees as a circular claim (in this case by Notre Dame making the same basic argument as the Little Sisters in a different challenge) that opting out of covering contraception legally means opting into it, by explaining that such a theory would preclude ANY religious accommodation:

The whole point of the accommodation is that the opting out by the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do.  But if that is enough to establish a substantial burden on Notre Dame's religious exercise, then it would effectively mean that governmental religious accommodations taking the form of "opt outs" for dissenters would themselves often create the very conflict with religion that they are designed to alleviate… For example, take a law that permits individual religious pharmacists to refuse to dispense certain drugs, and that provides that in such a case the drugs shall be dispensed by a nonobjecting pharmacist.  Under Notre Dame's theory, the first pharmacist could object to the accommodation—and insist that customers not receive the drug at all—because its refusal to dispense would "trigger," or "authorize," the second pharmacist to commit a morally objectionable act.”

It’s kind of like pregnant angels on the head of a pin. The nuns argue they cannot cause contraception to be offered. The government says that it’s the government causing contraception to be offered and that the nuns are indeed being afforded the right not to participate. Extending the Little Sisters’ argument about agency means that so long as any employee obtains contraception in any fashion, the sin is done. This undermines the entire principle of religious accommodation, which is supposed to protect the conscience of the religious objector but not violate the rights of everyone else.

Part of the problem with the case is that these are not purely legal, or even wholly logical, arguments.  The nuns, after all, say they are answering to a higher authority, or—as they put it in their reply brief in the case—the government’s “minimalist characterization of the form” should not be permitted to control the “Little Sisters’ religious determination about whether they can execute the form.” The Little Sisters reject the government contention that the form is an opt-out. Why? Religious doctrine. And somewhere in the interstices of religious doctrine, an ephemeral combination of signing this form, greenlighting its consequences, endorsing the idea of such coverage, and putting it all into writing, there lies, in their view, a violation of religious law. In other words, the two parties to this case are talking right past one another, and that puts the courts in a very precarious position. This isn’t just a fight over what signing the form means, it’s a fight about who gets to decide what fighting over the form means: Barack Obama or God? And who wants to be the judge of that?

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.