When Sonia Sotomayor decided, in the last hours of the last day of last year, to issue a temporary stay on the enforcement of the ObamaCare contraception mandate, she surprised a lot of people, but likely no one more than the man who had appointed her to the U.S. Supreme Court. Barack Obama prefers his (nominally) Catholic women to be like Kathleen Sebelius, whom he named secretary of Health and Human Services seemingly as a (middle) finger in the eye of the Catholic bishops of the United States. While Sebelius and her coreligionist Sotomayor probably differ only in the slightest degree on the question of abortion (and not at all on contraception), the HHS secretary seems more committed to the destruction of traditional morality, whatever measures it may take. Sotomayor, in this instance at least, placed the First Amendment’s guarantee of the free exercise of religion above ideological considerations.
Whether, in the face of administration pressure to reverse her decision, Sotomayor’s deference to the Constitution will prevail is anyone’s guess. While the Department of Justice seems determined to prevent the case of the Little Sisters of the Poor from coming before the entire Court, presumably out of fear that the contraception mandate will be overturned or at least scaled back, in the end it’s not likely to matter. The battle over the contraception mandate was lost years ago, long before Barack Obama ever dreamed of becoming a community organizer, much less president of the United States.
The administration and the DOJ have responded with puzzlement to the persistent appeal for relief by the Little Sisters of the Poor. The nuns, who run a not-for-profit home for the elderly in Denver, are in an interesting position, one rather different from that faced by Hobby Lobby and other for-profit companies claiming religious objections to the contraception mandate, and even from that faced by other religious nonprofits.
Religious nonprofits can avoid the requirement to provide contraception to their employees by signing a form stating that they object on religious grounds. Under a “compromise” offered by the administration last year, the requirement is then passed up the line to the insurance company serving the nonprofit. Other religious nonprofits have refused to sign, noting (rightly) that they are still morally implicated if the insurance company with which they contract provides the contraceptives to their employees.
In this case, however, the insurance company used by the Little Sisters of the Poor is itself a religious nonprofit run by the Christian Brothers, which means that it, too, is exempt from providing contraception.
Sign the paper, and the problem is solved.
Not so quick, say the Little Sisters. While signing the form may not mean that contraception will be distributed to their employees, it would mean that the nuns have accepted the state’s authority to infringe upon the free exercise of the Catholic Faith. A Christian who offers incense to an idol of the emperor may not really worship the emperor, but his action implies that the emperor has the authority to demand such worship. Better martyrdom—red, white, or otherwise—than taking an action that may lead others astray.
And this is where the puzzlement comes in, not just for the administration and the DOJ, but for whole generations of Christians who see a way out for the Little Sisters of the Poor but cannot, for the life of them (literally), understand why the nuns refuse to take it. They cannot comprehend the Little Sisters’ argument. They hear the President proclaim his commitment to protecting “freedom of worship,” and they do not understand why that is something very different from the free exercise of religion.
No one is forcing Catholics to hand out contraceptives at Mass—or even, in this case, to distribute contraceptives at all. If they knew the word, the administration and the Department of Justice and all of those puzzled Christians might suspect that the nuns have fallen prey to scrupulosity. The idea that Christians are called to faithfulness every hour of every day, that what we believe has consequences that make every decision a moral one—this is more than they are prepared to comprehend.
The same incomprehension explains the outraged reactions to a pope who had the gall to suggest, in a few short paragraphs of a 40,000-plus word document, that our economic decisions are, at heart, moral ones. The real problem was not what Pope Francis wrote, but the fact that he dared to say anything about the immorality of Mammon. The Holy Father is a Marxist; the Little Sisters are nitpickers. Pay no attention to that man behind the curtain, who just might be the prince of this world laughing his tail off at how successful he has been in convincing us that being a Christian requires nothing more than an hour or so of worship every week.