Many on the Left didn’t want any exemptions to the contraceptive mandate, even for purely sectarian groups. Congresswoman Jan Schakowsky, among others, considered that narrow exemption “itself a compromise.” The secularist central planners of Obamacare wanted total participation by all employers. They just couldn’t get away with it politically. So, naturally, they treat any objections from the religious to supposedly generous modifications of the mandate with the greatest impatience.
That impatience was on display in Justice Sonia Sotomayor’s dissent from the Supreme Court’s recent granting of a temporary reprieve to Wheaton College as its challenge to mandate-related regulations continues. Sotomayor felt the need to whip up a lengthy opinion to the reprieve, expressing exasperation with the Christian college for failing to appreciate sufficiently the Obama administration’s “accommodation” for religiously-affiliated groups.
The accommodation to which she refers came only after huge backlash to the announcement of the contraceptive mandate in 2012. Obama reluctantly directed HHS to modify the mandate for religiously-affiliated groups. HHS ultimately came up with a shell-game system for them. They could sign a form that theoretically transferred the costs of contraceptives, sterilizations, and abortifacients to their insurers. Many of these groups and institutions, Wheaton among them, found the “revision” insultingly meaningless and continued to press lawsuits against the mandate. After all, under HHS’s cynical arrangement, they still had to find insurers to cover the morally objectionable products and they still had to participate in setting up payment for the products. The prospect of essentially enrolling their employees in a fictitious free contraceptives/abortifacients program didn’t appeal to them understandably.
The Obama administration, which managed to carve out plenty of exemptions from Obamacare for political allies, couldn’t bring itself to grant a real exemption from one regulation to religiously-affiliated groups. So it came up with a corrupting alternative, under which these groups could nominally protect their freedom by endorsing a scheme to violate the freedom of their insurer. Wheaton wanted no part of “executing the government’s Form to designate, obligate, and incentivize the third-party administrator to provide religiously objectionable drugs on its behalf.”
Sotomayor scoffs at this objection, treating it as an absurd quibble. “Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she wrote. “But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.” In other words, Sotomayor claims to understand more deeply than Wheaton Christian teaching and its demands upon conscience. Just sign the form, it is no big deal, Sotomayor tempts Wheaton. The Christians there can be excused for not trusting her theology, which appears about as profound as her jurisprudence.
Sotomayor’s condescension is reminiscent of the Obama administration lecturing representatives of the Catholic Church on what its teaching about religious freedom should be. White House officials urged the Church to listen to liberal theologians who pronounced the mandate morally acceptable, unsolicited advice that caused Cardinal Dolan of New York to complain: “The White House seems to think we bishops simply do not know or understand Catholic teaching and so, taking a cue from its own definition of religious freedom, now has nominated its own handpicked official Catholic teachers.”
Sotomayor’s comment is also consistent with the Obama administration’s original attempt to define what even constitutes “religion.” At first, it claimed that any explicitly religious group which dared to perform charity for the public was non-religious. Backlash caused it to change that definition, but the very fact of its proposal had already signaled the attitudes of the Sotomayors, who see their claimed rationality as so superior to “belief” that they can determine what is and what is not properly religious.
Sotomayor, of course, sees no bias or irrationality in her conviction that the promotion of free contraceptives and abortifacients represents a sacred state interest, so vastly important that she must treat a temporary reprieve for one Christian college as a great crisis for the nation. She mocks Wheaton for making a mountain out of a mole hill while doing the same herself. She is certain that the modified mandate isn’t a “substantial burden” on religious freedom even as she treats the imaginary absence of free contraceptives for employees who went to work for a Christian college as a frightening prospect and crushing burden.
Sotomayor is writing more like a reproductive rights activist than a sober jurist. Far more worrisome than this “rare” reprieve to which she feverishly objects is the precedent she seeks to establish—that it is the business of “courts” to legislate what qualifies as true burdens to religious freedom.