Important victories for religious liberty today, but the Little Sisters decision far from settles their “legal odyssey” (as Alito puts it). All that happened is that the Court let the Trump Administration broaden the exemption from what the Obama Administration offered. From what I can tell, you’d need new litigation to stop a future Democratic administration to re-narrow the exemption again, but someone correct me if I am wrong. Here are some of my quick reactions. (I’d write in more detail, but I’m knee-deep in copyediting for my next book, Trust in a Polarized Age.)
1. The good news about today is that the large majority of the Court is prepared to defend religious liberty, and to force the federal government to seek other methods for facilitating contraception access, LGBT equality, and so on besides compromising the liberty of religious institutions. That’s essential for justice, and the political stability of the country. Progressives, you’ll govern the vast majority of American public institutions in accord with your conception of equality; you just have to make some exceptions for the sake of peace and mutual respect.
2. These religious liberty issues are part of the basis for Trump’s support, and I hope my progressive readers will factor that into account in deciding how hard to fight these battles. For me, the contraception mandate was the deciding factor in my decision to vote for Romney in 2012. I didn’t vote for Trump, but I was not able to oppose him with my whole heart because of these issues. There are many like me, progressive friends. We want to join you, but not when you ask us to choose between opposing Trump and harming the Church.
3. Most of my readers are secular, so let me quickly review how I think about the morality of the Little Sisters case (the details of which are more complicated than you may initially think). Basically, the case at issue, if you describe it in terms of the perspectives of groups like the Little Sisters, is that the federal government is forcing them to choose between a divinely-given vocation and imperiling their souls. Contraception, for some of these groups, is often seen as a *mortal* (roughly, damning until confessed) sin, and facilitating contraception in any way is also a mortal sin. So basically, from these groups’ perspectives, the feds are pressuring them into the possibility of an *infinite utility loss*. I know what it is like to fear for your soul. It might be the worst thing ever. And it’d be nice if the feds would find a way to ensure contraception coverage that didn’t have this implication. I hope my secular friends will try to take our perspective here.
4. I actually think when you get into the details, the Little Sisters themselves may not even be the subject of these legal strictures since their insurance provider is exempt, so it is kind of misleading to make them the public face of the religious liberty side of this case. But the other side is in many ways worse, claiming that women would be harmed by these exemption but were (from what I can tell) unable to find an instance of it. So the case is more political than I realized at first, which dampens my enthusiasm somewhat. So that needs to be said. But remember that this isn’t the end of seamless contraception coverage. The feds just have to pay for it directly, rather than making religious institutions into their instruments.
5. I agree with David French that Gorsuch may well have a plan to impose a religious liberty compromise on the country that is probably a good idea, and not unlike the Utah Compromise, where LGBT people come under equality before the law in employment, but extensive religious exemptions are provided to institutions that have a traditional view of sexual morality. I think it is a stable legal equilibrium, one that makes neither side happy, but the legal settlement that is most likely justified to the widest group of people. I don’t like that the Supreme Court is imposing the compromise on the country, but neither of the major parties are willing to compromise on the matter, and so at least we’re getting the right result, if in a non-ideal way. But Gorsuch may be intent on making the religious liberty/LGBT liberty less red hot, and as someone who believes in the values of peace, trust, and mutual respect, that gives me some hope. This is what reconciliation often looks like, folks. It isn’t victory, there is loss, but there is a beauty to it.