5 Judges: Forcing Contraception Reg on Nuns Like Providing 'Only Non-Kosher Food' to Jewish Prisoner

By Terence P. Jeffrey | September 24, 2015 | 2:33pm EDT
Pope Francis meets with Little Sisters of the Poor at the Jeanne Jugan Residence, a home for the elderly poor, in Washington, D.C. (Photo courtesy of Little Sisters of the Poor)

(CNSNews.com) - Five appeals court judges have joined in a dissenting opinion stating that the type of argument being used to justify the government's efforts to force the Little Sisters of the Poor to comply with an Obamacare regulation that requires their health-care plan to cover sterilizations, contraceptives and abortion-inducing drugs could also be used to force a Christian to work on Dec. 25 because the court had determined that “sources show that Jesus was actually born in March.”

Or, the judges said, the same type of reasoning could be used to justify providing a Jewish prisoner with “only non-Kosher food.”

The judges were objecting to a decision by the U.S. Court of Appeals for the 10th Circuit, on which they sit, which ruled that the Obama administration can force the nuns to comply with the regulation even though doing so compels the sisters to act against their Catholic faith.

The Little Sisters have asked the Supreme Court to take up their case, and the U.S. Conference of Catholic Bishops has issued an amicus brief supporting the Little Sisters.

So, too, has a group of Orthodox Jewish Rabbis.

The mission of the Little Sisters is to maintain homes for the elderly poor, one of which--the Jeanne Jugan Residence--is located a few blocks from the National Shrine of the Immaculate Conception in Washington, D.C.

Pope Francis and Cardinal Donald Wuerl are greeted by a Little Sister at the Jeanne Jugan Residence in Washington, D.C. (Photo courtesy of Little Sisters of the Poor)

Yesterday, Pope Francis visited the Little Sisters at this home after presiding over the canonization mass for St. Junipero Serra. The pope’s spokesman, Father Frederico Lombardi, said the pope made the visit to show his support for the Little Sisters in their lawsuit against the government.

In the petition they filed asking the Supreme Court to take up the case, the lawyers for the Little Sisters summarized their argument in defense of the sisters' religious liberty.

“The Little Sisters of the Poor are Catholic nuns who devote their lives to caring for the elderly poor,” said their petition. “The government has put them to the impossible choice of either violating the law or violating the faith upon which their lives and ministry are based.

“HHS insists that the Little Sisters must comply with a mandate that their employee healthcare plans ‘provide coverage’ for free contraceptives,” says their petition. “Although there is no dispute that the Little Sisters sincerely believe that all the available compliance methods would make them morally complicit in grave sin, HHS refuses to give them the exemption it has given other religious employers, and instead requires them to comply, either directly or by executing documents that authorize and obligate others to use the Little Sisters’ healthcare plans to accomplish the ‘seamless’ provision of contraceptive coverage.

“HHS does not dispute that the Little Sisters sincerely believe that their religion no more allows them to comply with the mandate via this regulatory mechanism than to do so directly,” says the petition. “But HHS disagrees with the Little Sisters’ moral analysis. In its view, the Little Sisters are ‘fighting an invisible dragon’ that can be vanquished with the ‘stroke of their own pen.’ If the Little Sisters follow their own moral compass instead of HHS’s, they face millions of dollars in penalties.”

Pope Francis prays with the Little Sisters of the Poor at the Jeanne Jugan Residence in Washington, D.C. (Photo courtesy of Little Sisters of the Poor)

In July, a three-judge panel of appeals judges ruled two-to-one against the sisters. Rather than ask the full U.S. Court of Appeals for the 10th Circuit to review the case, the sisters appealed directly to the Supreme Court. Nonetheless, the full appeals court held a vote on whether to take up the case, and a majority of the twelve active judges on the court voted no.

Judge Harris Hartz wrote an opinion dissenting from this decision, and he was joined by four other judges on the court.

“The opinion of the panel majority is clearly and gravely wrong,” said the dissenting judges.

“When a law demands that a person do something the person considers sinful and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion,” said the judges.

“All the plaintiffs in this case sincerely believe they will be violating God’s law if they execute the documents required by the government,” said the judges. “And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?”

The five judges argue that the court’s majority seems to have second-guessed the Little Sisters’ interpretation of Catholic moral teaching and what it requires of them.

“This is a dangerous approach to religious liberty,” the judges said.

“Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative,” the judges said. “A Christian could be required to work on December 25 because, according to a court, his core belief is that he should not work on the anniversary of the birth of Jesus but a history of the calendar and other sources show that Jesus was actually born in March; a December 25 work requirement therefore does not substantially burden his core belief.

“Or a Jewish prisoner,” they said, “could be provided only non-kosher food because the real purpose of biblical dietary laws is health, so as long as the pork is well-cooked, etc., the prisoner’s religious beliefs are not substantially burdened.”



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