At first blush, it doesn’t seem that Kim Davis, the Kentucky county clerk who refuses to issue marriage licenses to same-sex couples, and the Little Sisters of the Poor, the order of nuns who refuse to provide contraception coverage in their heath insurance plan, have much in common other than a broad claim to “religious liberty.”
But below the surface their claims have a commonality that speaks to the underlying assumption behind such assertions. As my colleague Sarah Posner has noted here on RD, the root of Davis’ claim is that “the Bible is of a higher authority than a ruling of the United States Supreme Court,” and that, as a result, while Davis “purports to make a religious freedom claim,” she and her lawyers are actually litigating “the very essence of authority.”
As Catholic providers, the Little Sisters supposedly are basing their claim on the specific Catholic doctrinal prohibition against contraception use. But this claim only takes them so far. As I’ve noted before, while Catholic teaching bans Catholics from using contraception, it’s largely silent on the issue of Catholics cooperating with the provision of contraception, such as when a health plan they sponsor covers it. This is in contrast to abortion, where Catholic teaching is clear that Catholics cannot cooperate in the provision of abortion.
The upshot is that, traditionally, Catholic health plans could put one step between themselves and the provision of contraception—such as having another insurer handle the administration of claims—as a kind of doctrinal fig leaf to cover any moral culpability on their part while allowing women seamless access to contraception.
But this tacit agreement over the provision of contraception broke down in the face of the decision by the US Conference of Catholic Bishops to politicize the issue of contraceptive coverage in the Affordable Care Act as part of their “religious liberty” push to forestall legal approval of same-sex marriage. As a result, the bishops and Catholic litigants, like the Little Sisters, refused any accommodation on the grounds that even notification of their intent to recuse themselves from coverage was what triggered such coverage and therefore still amounted to cooperation.
This line of reasoning has been rejected by every single federal appeals court that has heard it to date, including the 10th Circuit, which rejected the Little Sisters’ claim in July, and again last week when it refused to rehear the case. But a rare dissent to the latest decision not to hear the case illuminates the similarities between Davis’ claims and the Little Sisters’ claims:
All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. 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 dissenting justices admit that the issue has “little to do with contraception,” which would be the doctrinal basis of the nuns’ objection. Instead, as with the litigating of authority mentioned earlier, it has to do with the nuns’ right to place “God’s law” ahead of the federal appeals court’s opinion that filling out paperwork isn’t a religious liberty issue, but one of basic civil administration.
In other words, according to the dissent, the federal appeals court:
…does not doubt the sincerity of the plaintiffs’ religious belief. But it does not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution of the documents is sinful. Rather, it reframes their belief. It generalizes the belief as being only opposition to facilitating the use and delivery of certain contraceptives to which they object.
The dissenting judges argue that “it is not the job of the judiciary to tell people what their religious beliefs are.” But it is the court’s job to draw a line between what constitutes a religious belief and what is a derivative of that belief.
Like Davis, the Little Sisters and the dissenting judges are arguing that an individual’s interpretation of God’s law should be given deference over the courts’ authority to administer civil law simply because it is a religiously informed belief. That’s a radical claim whether it comes from an Apostolic Christian court clerk or an order of Catholic nuns.
