Justice: How Can Gov’t Function If It Can’t Make People Do Things They Believe Will Damn Their Souls?

By Terence P. Jeffrey | March 24, 2016 | 12:29 PM EDT

Justice Sonia Sotomayor leaves the Cathedral of St. Matthew the Apostle in Washington, D.C., on Oct. 4, 2009, after attending the annual Red Mass. (Screen Capture)

In oral arguments in the Supreme Court yesterday, Justice Sonia Sotomayor asked an attorney representing East Texas Baptist University, Southern Nazarene University, Geneva College and the Little Sisters of the Poor whether the United States government would ever be able to function if it could not demand that people do things that those people believe will cause their souls to “be damned in some way.”

“Because every believer that’s ever come before us, including the people in the military, are saying that my soul will be damned in some way,” said Sotomayor. “I’m not naysaying that that is a very substantial perceived personal burden by them. But if that’s always going to be substantial, how will we ever have a government that functions? How will we ever have anything that the government can demand people do in objecting…that won’t be a problem?”

The case—Zubik v. Burwell—is looking at the question of whether the Obama administration can force Catholic and Protestant non-profit institutions to cooperate in a government regulatory scheme that would use the health-care plans of those institutions to deliver coverage for sterilizations, contraceptives and abortion-inducing drugs and devices.

(Screen capture from the transcript of the oral argument in Zubik v. Burwell as posted on the Supreme Court's website.)

The Catholic Archdiocese of Washington, D.C., which is one of the plaintiffs in the case, summarized the argument made by the Catholic organizations in its brief to the court.

This brief noted that the Obama administration’s regulation would put a “substantial burden” on the Catholics’ religious exercise by forcing them to act against their faith by signing a document that authorizes and obligates their insurance provider to provide the objectionable services—including abortion-inducing drugs and device--to their employees and by forcing them to maintain a health plan and a continuing relationship with a health-plan provider that provides these objectionable services to their employees.

The archdiocese's brief explained the objection as follows:

“Petitioners in these consolidated cases are Catholic nonprofits that are being forced to decide between taking actions that violate their sincerely held religious beliefs or incurring massive penalties.

“In accordance with their faith, Petitioners have been careful to craft their insurance plans to exclude coverage for abortifacients, contraceptives, and sterilization. The Government, however, has made it impossible for them to continue that religious exercise. It has promulgated regulations forcing Petitioners to both (1) sign and submit documentation that authorizes, obligates, and incentivizes their insurance companies to deliver religiously objectionable coverage to Petitioners’ plan beneficiaries, and (2) maintain health plans and ongoing insurance relationships through which the objectionable coverage is provided. It is undisputed that taking either of these actions would violate Petitioners’ religious beliefs. It is equally undisputed that if Petitioners refuse to take these actions, they will be subject to substantial penalties. That is the very definition of a substantial burden on religious exercise under the Religious Freedom Restoration Act.”

The first words in the U.S. Bill of Rights say: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

But under an existing law—the Religious Freedom Restoration Act (RFRA)—the government is authorized to compel someone to take an action that places a “substantial burden” on their religious exercise provided it advances a “compelling government interest” and does so by the “least restrictive means.”

Members of the Little Sisters of the Poor religious order out side the Supreme Court on March 23, 2016. (AP Photo)

In its brief to the Supreme Court, the Catholic Archdiocese of Washington, D.C., summarized the law this way: “RFRA prohibits the Government from imposing a ‘substantial[] burden’ on ‘the exercise of Religion’ unless doing so ‘is the least restrictive means of furthering [a] compelling governmental interest.’”

In its brief, the archdiocese said: “the question presented here is whether the Government can force Petitioners to violate their sincerely-held religious beliefs under threat of massive penalties, without any evidence that such coercion is the least restrictive means to advance any compelling interest.”

But during Wednesday’s oral arguments in the case, in an exchange with attorney Paul Clement, Justice Sotomayor questioned whether it is in fact a “substantial” burden on someone’s religious exercise for the government to demand them to do something they believe will cause their soul to be “damned.”

According to the initial official version of the transcript of the oral argument posted on the Supreme Court’s website (which is “subject to final review”), the exchange went as follows:

JUSTICE SOTOMAYOR: “What I don’t understand, Mr. Clement, is when will any government law that someone claims burdens their practice ever be insubstantial? Because every believer that’s ever come before us, including the people in the military, are saying that my soul will be damned in some way. I’m not naysaying that that is a very substantial perceived personal burden by them. But if that’s always going to be substantial, how will we ever have a government that functions? How will we ever have anything that the government can demand people do in objecting—"

MR. CLEMENT: “Two things—"

JUSTICE SOTOMAYOR: "--that won’t be a problem?”