A Supreme Court Sequel for the Little Sisters

The Little Sisters of the Poor are headed back to the Supreme Court this term.

It is unclear whether they will win this one narrowly or broadly, but they should win. Although it is unfortunate that they have had to be in court again, the Little Sisters’ second case at the Supreme Court could end up benefiting religious freedom in the future. Their opponents’ insistence on drawing them back into litigation may yield a significant precedent for interpreting the federal statutory law of religious freedom set forth in the Religious Freedom Restoration Act (RFRA).

Last time the Little Sisters went to the Supreme Court, they were plaintiffs seeking relief from the Affordable Care Act’s federal command to include contraceptive drugs and devices in their health benefits plan. This time, they intervened as defendants, while the plaintiffs are states seeking to invalidate the 2017 federal rule that protects the Little Sisters’ religious exercise by exempting their health benefits plan from contraceptives commandeering.

Last time, the Little Sisters had the Obama Administration against them. This time, they have the Trump Administration on their side.

Last time, their case was heard by an eight-justice Court without Justice Antonin Scalia and with Justice Anthony Kennedy. This time, their case will be decided by a nine-justice court that includes Justice Neil Gorsuch and Justice Brett Kavanaugh.

But one thing has not changed: The insistence of some government officials that the Little Sisters and other religious employers must implement the contraceptive mandate in violation of their religious commitments. The Obama Administration fought hard against granting the regulatory exemption that the Trump Administration later promulgated when settling the first round of contraceptive-commandeering cases. Lawsuits led by blue-state Attorneys General (this one by Pennsylvania and New Jersey, together with another one by California, Delaware, Virginia, Maryland, New York, Illinois, Washington, Minnesota, Connecticut, D.C., North Carolina, Vermont, Rhode Island, and Hawaii) picked up where the Obama Administration left off. With their party having lost at the federal level, these partisans used their state offices to go on offense against new federal rules protecting conscience and religious freedom.

But what business do states have suing the federal government to invalidate federal conscience and religious freedom rules protecting private employers in their states? The answer implied in this question may be one way the case could end—with a ruling that the states have no standing to sue the federal government to take away the Little Sisters’ federal-law rights.

The trial court in this case concluded that the states did have standing to sue, and awarded them a nationwide injunction against the federal government’s conscience and religious freedom rules. Pause for a moment and think about how strange that is: The plaintiff states successfully cancelled federal regulations protecting conscience and the religious exercise of religious employers nationwide.

The federal government and the Little Sisters appealed to the United States Court of Appeals for the Third Circuit. In that decision, the Third Circuit not only affirmed the states’ standing to sue but also ruled in a footnote that the Little Sisters lacked standing to appeal the trial court’s ruling. Whether this no-standing-for-the-Sisters argument was correct is the first question presented in the Sisters’ petition for review that the Supreme Court granted.

The more important question in the case, though, is whether the Third Circuit panel correctly ruled that the federal government had no statutory authority to give the Little Sisters and other religious employers the exemption. The panel reasoned that nothing Congress has enacted into law authorized the agencies to exempt some employers from the requirement to cover contraceptive drugs and devices in their health benefits plan. But this reasoning breaks on the rock of RFRA.

The Third Circuit improperly interpreted RFRA as a rule for courts but not for federal agencies. By its terms, RFRA applies “to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after” RFRA’s enactment. The law further provides as a “[r]ule of construction” that “[f]ederal statutory law adopted [after RFRA’s enactment] is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.” As Michael Stokes Paulsen explained early on in RFRA’s history, “RFRA operates as a sweeping ‘super-statute,’ cutting across all other federal statutes (now and future, unless specifically exempted) and modifying their reach.”

If the Supreme Court gets past the states’ lack of standing question and reaches the Third Circuit’s ruling that Congress has not authorized federal agencies to accommodate the exercise of religion, there is every reason to expect a sweeping rejection of that ruling. The Little Sisters of the Poor are in a Supreme Court sequel because of “progressive” politicians’ unrelenting opposition to any religious exercise that might make it marginally more complicated for these politicians to impose their vision of the good life. But their attempt to undermine RFRA will only make it stronger. We can expect a Supreme Court ruling that reaffirms the relationship between RFRA and the rest of federal law that RFRA’s supporters sought when enacting it in 1993. As Paulsen pithily put it twenty-five years ago in locating the Religious Freedom Restoration Act within the law of the land, “a RFRA runs through it.”

 Kevin C. Walsh is professor of law at the University of Richmond.