For the second time in several years, the Little Sisters of the Poor will be forced next week to defend themselves in federal court against what former Justice Anthony Kennedy might call “government animus” — or what the rest of us regular folk might call, “a bunch of commie Democrats that won’t mind their own business.”
In State of California v. Little Sisters of the Poor, the State of California sued to end a 2017 regulation that gives religious nonprofits, including the order of Catholic nuns, legal protection from the HHS mandate. The HHS mandate, as most know, requires employers to provide services such as the week-after pill in their healthcare plans and as such, created a seven-year legal battle that went all the way to the Supreme Court.
In 2016, the Supreme Court decision in Zubik v. Burwell incorporated Little Sisters and issued a unanimous per curiam ruling that "expresses no view on the merits of the case." It essentially told the litigants to go back to the lower courts and work out their differences. In the meantime, California Attorney General Xavier Becerra sued to take away the Little Sisters’ religious exemption, forcing the nuns back to court. The U.S. Court of Appeals for the 9th Circuit will hear arguments and decide whether the Little Sisters of the Poor can get back to their vital ministry of caring for the elderly poor.
The chief judge at the 9th Circuit is a Bill Clinton appointee, so it’s possible the Little Sisters could lose the appeal, in which case it would be appealed en banc at the 9th Circuit again. However, if they lose that again they could, and likely would, appeal to the Supreme Court. Now that Justice Brett Kavanaugh is sitting on the bench alongside Justice Neil Gorsuch — and the makeup of the Supreme Court is entirely different from the way it is was in 2016 — a decision in favor of the nuns is likely. In fact, even without the dramatic change of the makeup of the court, given the Masterpiece Cakeshop v. Colorado Civil Rights Commission ruling last year, it’s hard not to see why even Kennedy would not have seen this as the same type of “government animus” he scolded the Colorado Commission for a few months ago.
On the one hand, the Little Sisters of the Poor are a group of nuns who are serving the poorest, most desperate, needy, helpless people among us. Society should be grateful for their service, not forcing them to comply to government mandate. The last thing that should happen to a bevy of selfless women of God is a lawsuit from the state of California requiring they, of all blessed people, provide contraception to their employers. Nothing makes me think politicians are more out of control and have spiraled down a rabbit hole of fantastical socialism then forcing religious women to comply to their demands about something that is antithetical to their very value system.
The issue of religious liberty is hardly a sexy, interesting issue to most of the major media, but cases like this — of incessant, noxious, unnecessary government intrusion on a person’s religious liberties — are cropping up around the country and need to be quelled without hesitation. The country was founded on religious liberty, and Democrats monopolizing states like California should not forget that.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner's Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.