Policy: Law

Examiner Editorial: Justice Sonia Sotomayor punts on religious freedom, for now

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Photo - NEW YORK, NY - MAY 16:  U.S. Supreme Court Justice Sonia Sotomayor (R) departs New York University's commencement ceremony at Yankee Stadium on May 16, 2012 in the Bronx borough of New York City. Sotomayor spoke to a crowd of more than 27,000 at the ceremony and was raised in a Bronx housing project not far from the stadium.  (Photo by Mario Tama/Getty Images)
NEW YORK, NY - MAY 16: U.S. Supreme Court Justice Sonia Sotomayor (R) departs New York University's commencement ceremony at Yankee Stadium on May 16, 2012 in the Bronx borough of New York City. Sotomayor spoke to a crowd of more than 27,000 at the ceremony and was raised in a Bronx housing project not far from the stadium. (Photo by Mario Tama/Getty Images)
Opinion,Editorial,Supreme Court,First Amendment,Freedom of Religion,Law,Sonia Sotomayor

Amid a virtual media blackout, dozens of religious freedom lawsuits against Obamacare are making their way through the courts. One of them suffered a small but noteworthy setback last week at the hands of Supreme Court Justice Sonia Sotomayor.

The owners of Hobby Lobby, a craft store chain, sued to overturn Obamacare's requirement that all employer-provided health insurance plans cover abortifacient drugs known as the morning-after pill. Their request for an emergency injunction to block this requirement went to Sotomayor, who turned them down.

"[W]hatever the ultimate merits of the applicants' claims, their entitlement to relief is not 'indisputably clear,' " she wrote. "This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion."

We beg to differ from this reasoning, especially given the frequent use of such injunctions when they suit the Left's purposes. For one thing, it matters that the regulation in question would never have passed Congress as part of the Obamacare statute. Moreover, if it ultimately survives this court challenge, then a delay in putting this regulation into effect would not interfere in any serious way with the running of the broader Obamacare program.

Without an injunction, Obamacare's hasty implementation forces Hobby Lobby's owners to either violate their religious beliefs or pay up to $1.3 million per day in fines. The only other option would be to drop employee health coverage altogether -- something many other businesses are already doing because of Obamacare's burdensome costs and regulations.

Sotomayor was not ruling on the merits of this case, but she has ruled on religious freedom previously. As a Second Circuit appellate judge in 2003, Sotomayor wrote an opinion stating that a Muslim inmate's First Amendment rights had been violated after he was denied a holiday feast. A federal district court had ruled that since this feast was not mandatory in Islam, it could rightfully be denied to the inmate.

Sotomayor, however, argued -- correctly, in our view -- that it was not the court's business to decide how a religion prioritizes its tenets. "To confine the protection of the First Amendment to only those religious practices that are mandatory would necessarily lead us down the unnavigable road of attempting to resolve intra-faith disputes over religious law and doctrine," she wrote.

Indeed, it is not the place of any court, nor of the Obama administration, to decide which tenets actually count. In the case of the related lawsuits by Catholic institutions against Obamacare's mandatory contraception coverage, Obama's defenders argue that a large majority of married Catholics (the most accurate estimate is around 70 percent) fail to observe this teaching. But this point is irrelevant to the law and the Constitution. Christianity is afforded the status of a religion under our laws, despite the routine failure of about 100 percent of its adherents to observe its strict commandment to love God and neighbor.

Sotomayor's ruling may have temporarily imposed unjust fines on Hobby Lobby, but there is cause to hope that she and perhaps even other liberals on the court will show consistency when this or one of the many related cases is reviewed by all nine justices.

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