While the Supreme Court put some issues to rest with its recent religious freedom decisions, there is one case that remains largely unsettled: the Little Sisters of the Poor.

For insight, we reached out to three prominent religious freedom scholars, Marie-Joe C. Noon, an academic researcher at the University of Illinois College of Law; Tanner J. Bean, an attorney at Fabian VanCott; and Robin Fretwell Wilson, the Mildred Van Voorhis Jones Chair in Law at the University of Illinois College of Law and Director of the Institute of Government and Public Affairs in the University of Illinois System.

They recently co-authored an important analysis of this decision pointing out:

Unless Congress enacts legislation to settle the dispute permanently, the net effect of the Little Sisters of the Poor case will be to keep the administrative agencies in the middle of the culture war. Congress could call an armistice in this specific culture-war clash, just as Congress set it in motion. But it has yet to do so.

A summary of their analysis is included below in response to questions from Sutherland Institute as a part of our examination of recent Supreme Court religious freedom decisions. 

Marie-Joe Noon, Tanner Bean and Robin Fretwell Wilson:

Culture-war clashes, like the one at the heart of the Little Sisters of the Poor case, are now routinely decided by the United States Supreme Court. Despite the clear need for legislation that puts these predictable culture-war fights to rest, “Congress has proven useless” in resolving these clashes, punting “the most contentious questions” to the courts.

 

Since Congress has left a legislative vacuum, the administrative agencies are left to fill it. So bureaucratic agencies now grapple with questions of values—nondiscrimination, access to restrooms, the protection of women, protecting transgender people, and religious freedom.

 

A prime example is the decision of which drugs women are entitled to under the Affordable Care Act. All of these decisions have been left by Congress to federal agencies and subagencies. The services the agencies mandated employers to provide included four types of drugs that objectors believe  end an unborn baby’s life (which the government stipulated to in litigation), as if no thought had been given to America’s deep divisions around abortion.

 

Initially, churches were exempted because regulators believed church employees would share the church’s values, but no exemption was provided for other objectors.

 

Most people know what happened next. The Obama administration fashioned an accommodation for nonprofit religious groups that still required contraceptive coverage but allowed some (but not all) religious groups opposed to providing them out of the position of paying for those drugs. The Supreme Court’s decision in the Hobby Lobby case ensured businesses that are closely held (often by families that started them)  would also get an exemption.

Meanwhile, the Little Sisters of the Poor, Catholic nuns who provide care for the elderly poor, qualified for the accommodation but rejected its requirements because the forms they had to provide had the effect, they believed, in making them complicit in providing drugs they saw as both ending life and preventing life. At the end of the Obama administration, it appeared that the government and the nuns, at the Supreme Court’s urging, could come to an agreement where the Little Sisters needed to “do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” while women still received “cost-free contraceptive coverage” from the same insurer. But finding this common ground proved too much in the Obama administration’s waning hours.

Enter the Trump administration, which in one of its first actions, exempted not only all religious groups but moral objectors, too. The Trump administration’s fix led to another legal challenge, which the Supreme Court has now resolved by allowing the exemptions to stand.

The Court’s decision affirmed the authority of administrative agencies under both administrations to shape the law of religious freedom, which ensured these agencies will remain in the middle of a culture war fight over abortion that had been going on long before the Affordable Care Act (ACA). The Supreme Court decision was based on three words out of the ACA’s more than 400,000 words—“as provided for.” The Court said the Obama administration was authorized by Congress to create the contraceptive mandate and the Trump administration was authorized by Congress to gut it.

The agencies that interpret and administer our laws are increasingly supplying more of the substance of the law because Congress has delegated its authority to them.

Unless Congress enacts legislation to settle the dispute permanently, the net effect of the Little Sisters of the Poor case will be to keep the administrative agencies in the middle of the culture war. Congress could call an armistice in this specific culture-war clash, just as Congress set it in motion. But it has yet to do so.

Despite their “long ordeal,” the Little Sisters will almost certainly be back to the Court because Democratic presidential contender Joe Biden has said he would “restore the Obama-Biden policy that existed before the Hobby Lobby ruling: providing an exemption for houses of worship and an accommodation for nonprofit organizations with religious missions.”

For more information, read the authors’ upcoming piece, “The Administrative State as a New Front in the Culture War” published in the Cato Supreme Court Review.