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Saturday, August 8, 2020

Supreme Court’s odd reluctance to truly stand up for religious freedom

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Wednesday’s headline news from the Supreme Court was less than it seemed, because the justices never should have had to rule on the point they decided on — and they dodged the central issue for at least the second time.

The court simply ruled, 7-2, that the Trump administration could add a broad religious-freedom exemption to the Obama administration’s order that employer health plans must include “free” contraceptives. That’s a no-brainer: One president gets to make different decisions from another.

To be clear, the Trump order was in no way an effort to rewrite the ObamaCare law — which is completely silent on the question. The “contraceptive mandate” was the work of then-Health Secretary Kathleen Sebelius as she chose how to apply that law.

The real issue here is whether employers who are morally opposed to contraception have to pay for it anyway, as Sebelius intended. The Little Sisters of the Poor, a Catholic nursing order, has been fighting for years to be exempt from the mandate — citing the First Amendment and the Religious Freedom Restoration Act, which guarantees protections for sincerely held religious beliefs.

Yet the court (repeating a dodge it took in a 2016 case) declined to rule on that basic question, which means that New Jersey and other states will continue litigating against the Little Sisters.

This is particularly bizarre, since the same seven justices on the same day broke different new ground when it comes to religious protections: They held that Catholic schools and similar organizations can’t be sued for employment discrimination as long as the (ex-)employee’s duties included any religious role, such as teachers’ responsibilities for students’ moral foundation. Even suits for age or racial discrimination are out — the “ministerial exception” is that broad.

Next to that, siding clearly with the Little Sisters’ rights of conscience should be easy.

Read More at NYPost

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