In an almost unprecedented move, five federal judges issued an opinion sharply criticizing their court’s refusal to correct its recent decision that would force the Little Sisters of the Poor to assist the federal government with its contraception distribution scheme.
The opinion calls the decision against the Little Sisters “clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty.” The five judges took their colleagues to task for refusing to accept the Little Sisters’ sincere beliefs, warning that “it is not the job of the judiciary to tell people what their religious beliefs are.”
“Today’s opinion offers important support to the Little Sisters’ request that the Supreme Court hear their case,” said Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty and lead counsel for the Little Sisters of the Poor. “These judges understand that courts and bureaucrats should not be telling nuns what the Catholic faith requires.”
After a divided three-judge panel ruled against them, the Little Sisters promptly petitioned the Supreme Courtto hear their case. Although the Little Sisters had not asked the entire Tenth Circuit to reconsider the panel’s opinion, the Tenth Circuit conducted a vote on its own initiative to determine whether the entire court should re-hear the case. When the court declined, the five judges issued their opinion explaining why the Little Sisters deserve protection.
The opinion further criticizes the decision against the Little Sisters as reflecting a “dangerous approach to religious liberty.” The opinion noted that the reasoning of the court could be used to second-guess the religious beliefs of any faith, including religious minorities like Jews requesting a kosher diet.
But knowing that the Little Sisters and other religious ministries have already asked the Supreme Court to intervene, the five judges explained: “Fortunately, the doctrine of the panel majority will not long survive. It is contrary to all precedent concerning the free exercise of religion.”
The Becket Fund for Religious Liberty and a legal team including former Solicitor General and leading Supreme Court advocate Paul Clement filed the cert petition on behalf of the Little Sisters, their health benefits provider Christian Brothers, and the Baptist ministries GuideStone, Reaching Souls, and Truett-McConnell College.
The Becket Fund continues to lead the charge against the unconstitutional HHS mandate, winning a landmark victory at the U.S. Supreme Court in Burwell v. Hobby Lobby. It currently represents the Little Sisters of the Poor, Mother Angelica’s Eternal Word Television Network, and Houston Baptist University, along with many other religious ministries. Six other petitions challenging the HHS mandate have already been filed at the Supreme Court and more are expected.
