August 3, 2015, Baltimore Sun
This is a very dangerous ruling. The judges embraced a view of their own role that, in the words of another federal judge, renders religious freedom “exceedingly shallow — perhaps nonexistent.” If courts may define what actions constitute sin, religious freedom will be gone for anyone whose theology does not fall in line with that of the judge. If a believer objects, she could be told that the offending law does not force her to violate the “properly understood” tenets of her religion. But that’s not a legal determination, and it results in a court battle that amounts to a theological debate over the interpretation of scripture. This is precisely the inquiry in which judges and governments may not engage in any society that values religious freedom.
The way courts normally consider religious liberty claims is through a carefully calibrated approach designed to balance freedom with other very important interests. In the first step in this approach, a believer identifies a sincere belief threatened by the government and shows that the government is exerting significant pressure to violate that belief. In the next step, the government can override that sincere religious objection if it can show that the law serves a compelling interest and that no alternative means could achieve that interest without infringing on religious liberty. Here, the court erred on the first step. The judges told the Sisters what actions violate, or do not violate, the Sisters’ own faith.
Josiah Kollmeyer is a student at Harvard Law School and a summer associate with the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor. His email isjkollmeyer@becketfundcommunity.org.