Little Sisters, Don’t You Like What Your Big Sister Done?

Eternal Greve rule: never, ever talk about religion or the Bill of Rights—not on a blog, not in law school, not in FedSoc forums. There’s no law there; and on the mystery of life and the universe, I have no comparative advantage over Justice Kennedy. (He has the advantage: a black robe.) But there’s an exception to every rule, and a point where you have to push back.

OLYMPUS DIGITAL CAMERAThis past Sunday, a Little Sister of the Poor visited my local parish to raise money for her mission–to provide homes for the elderly to live their last years, and to die, with dignity. Mrs. Greve, whispering in the pews: “We just sent them a check. Should we give again?” Me: “You bet. Earmark it for their legal defense.”

That would be the case over the Obamacare “contraception mandate,” which requires insurers to cover such services but allows religious institutions to opt out by filing a form sheet. Not good enough, say the Little Sisters: the insurers will just shift the costs, so we’re still complicit. The Supreme Court has issued a temporary stay of the mandate.

To sign, or not to sign: why such “Foolishness over a Mandate,” as the normally sensible Ruth Marcus asks in today’s Post? It’ll all go away with a signature (DoJ says). And, Ms. Marcus notes (in reliance on Cornell law professor Michael Dorf), that can’t be so bad. Quakers had to sign conscientious objector statements back then; on the Little Sisters’ theory, didn’t that make them complicit in the crime?

Let’s say, for the sake of argument, that the legal-constitutional argument here is close. And let’s say conservatives picked this fight: the real question is why a sentient government would push so hard. Why not just tell the Little Sisters, “If you like your health insurance, you can keep it?” We’re talking about a few nuns in charge of nonagenarians. They’re not exactly striving for world domination. (Actually they are, but not in the sense of this world.)

The government does this because there’s a war on. It’s been established that religious preferences cannot count for purposes of public policy: they’re just “animus.” (Do you really need the SupCt cites?) So why tolerate or accommodate those preferences in private affairs and transactions? No reason. Between exempting conscientious objectors from national service and blocking some nuns from engaging in an ordinary market transaction: it’s all the same to Ms. Marcus and Professor Dorf. And Justice Kennedy. And the gay rights movement.

What’s been called off here is America’s Lockean compromise on religion, which rests on public neutrality and toleration, a market economy, and vibrant religion, freely exercised. What you’re looking at instead is Robespierre’s America: we have won the (sexual) revolution, and now… the Little Sisters need a public certificate of exemption precisely because they are so marginal, authentic, and sympathetic. If even they accept public requirements, then surely will you. And Madame Ruth Marcus Defarge will knit you a sweater.

This will be a game of inches for decades hence. Whether you’re a Libertarian or a believer or both, the Sisters’ inch is your first inch, too. So wish them well, and fight for it. Send them money (worst thing that can happen, it’ll help someone see the face of Christ). And if you’re a praying man or woman, pray also for the other side. Ave Maria, gratia plena. Dominus tecum. Benedicta tu e mulieribus. Holy Mother, send them to Hell.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

About the Author

Comments

  1. gabe says

    “Holy Mother, send them to Hell” – now that’s the spirit!!! – and possibly a great campaign slogan!!
    Of course, be careful or they may require your church to erect a statue of Satan as penance for your obstructionism!!

  2. says

    The real danger is in legitimizing the assumptions that underlie “exemptions:”

    1.) That religious charities are simply well-intentioned dabblers that pretend at virtue in endeavors that are the proper role of the government.

    2.) That “exemptions” are not a natural consequence of the rights of a free people, but rather a transient accommodation derived of government benevolence.

    3.) That religion is a quirky lifestyle choice, the exception that requires an exemption from the norm, rather than the other way around.

    4.) That matters of conscience are best dealt with by artifice rather than principle; that “exemption” is a suitable euphemism for “pretense.”

    5.) That one cannot accept the premise of exemption without also accepting the underlying premise: that the government can decide when and where to respect matters of conscience.

    6.) That once the authority of the government to mandate in the realm of matters of conscience is accepted, even in the setting of cosmetic exceptions, the authority of the government to treat citizens as subjects is also accepted.

    The nuns are doing God’s work in more ways than one.

  3. R Richard Schweitzer says

    The one who should be “signing” (by changing defining) is Big Sister Sebelius of the Order of Arrogant Servants.

    This issue is ***not*** about a statutory “mandate.”

    This is an issue of the conflict between an exercise of **bureaucratic discretion** and its impact upon an expression of religious worship. It is not the PPACA itself at issue, it is the bureaucratic action at issue.

    The requirements for costs of contraceptive (including abortifacts) coverage are **not** mandated by statutory language, they are created by the bureaucratic discretion exercised by the HHS Secretary pursuant to section 1302 (a) (1), which provides:

    “In this title, the term ‘‘essential health benefits package’’ means, with respect to
    any health plan, coverage that—
    (1) provides for the essential health benefits
    *** defined by the Secretary***
    under subsection (b);

    (b) ESSENTIAL HEALTH BENEFITS.—
    (1) IN GENERAL.—Subject to paragraph (2), the Secretary
    shall define the essential health benefits, except that such
    benefits shall include at least the following general categories
    and the items and services covered within the categories:
    (A) Ambulatory patient services.
    (B) Emergency services.
    (C) Hospitalization.
    (D) Maternity and newborn care.
    (E) Mental health and substance use disorder services,
    including behavioral health treatment.
    (F) Prescription drugs.
    (G) Rehabilitative and habilitative services and devices.
    (H) Laboratory services.
    (I) Preventive and wellness services and chronic disease
    management.
    (J) Pediatric services, including oral and vision care.”

    Anything in addition to those required inclusions is entirely a matter of bureaucratic discretion.

    It is the intention (arrogance) of this administration to defend and advance all bureaucratic discretion.

    This is not a case of a statutory provision or statutory definition. It is a case of bureaucratic discretion which could easily be adjusted and still remain in full compliance with the statutory language.

    Sign off Sebelius!

  4. gabe says

    Richard:

    Thank you for the research effort and you are SO right!!

    Here is something from a George Will column today that demonstrates, at least to my mind, that this is about nothing more than the imposition of Proggie will and belief systems upon the populace with a specific intent to “crush” and extinguish the “atavistic” religious elements remaining in our society.

    “Today, Little Sisters of the Poor Home for the Aged v. Sebelius may be the second-most serendipitously named court case in U.S. history, second to Loving v. Virginia (wherein Richard Loving, who was white, and his wife Mildred, who was black, in 1967 overturned Virginia’s law against interracial marriages). The Little Sisters are challenging the Obamacare mandate that makes them complicit in providing, through their health insurance, contraception, something that offends their faith.

    This mandate illustrates Gesture Liberalism: It is unimportant to the structure of Obamacare. It has nothing to do with real insurance, which protects against unexpected developments — car insurance does not pay for oil changes. The mandate covers a minor expense: Target sells a month of birth control pills for $9 . The mandate is, however, a gesture affirming liberalism’s belief that any institution of civil society can be properly broken to the saddle of the state. ”

    take care
    and thanks again for the research
    gabe

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>