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Little Sisters decision is a win for religious liberty

July 29, 2020

By Justin Butterfield, Deputy General Counsel

The U.S. Supreme Court’s recent opinion in Little Sisters of the Poor v. Pennsylvania may be more important for religious freedom in the long run than its mixed reception among religious liberty advocates would indicate.

On its surface, Little Sisters of the Poor is a great triumph for religious freedom and rights of conscience: It was a 7–2 victory for the Little Sisters of the Poor and their years-long struggle to be able to abide by their religious convictions in the face of ObamaCare’s Contraceptive Mandate. It upheld the Trump administration’s rulemaking process that used the Religious Freedom Restoration Act (RFRA) as a touchstone in regulation drafting. It was written by Justice Clarence Thomas, probably the most conservative justice on the Supreme Court.

Despite these bona fides, some want you to believe that the opinion is a masterstroke of a liberal plot to overturn the strides America has been making in religious freedom and to, instead, hand the reins of our first freedom over to the whims of an ever-increasing administrative state.

While under the surface, Little Sisters of the Poor is not a case about the grandiose principles of religious freedom that many advocates would have preferred, neither is it Judas’s kiss on the cheeks of religious freedom before handing our freedoms over to a waiting administrative state. On the contrary, Little Sisters of the Poor is a critical check on administrative agencies’ rulemaking power.

In its opinion, the Supreme Court upheld the conscience rights of religious objectors—not by acknowledging their inalienable rights of religious freedom but by upholding the authority of administrative departments to issue the regulations in question. This lends skepticism to the Court’s reasoning for those who were disappointed that the Court grounded its decision in the malleable protections of a mere regulation rather than the concrete rights found in the Bill of Rights. Worse, in an ever-increasing administrative state, skeptics seem leery of a Supreme Court that would validate the power of the administrative state, rather than restrain it.

The skepticism is unwarranted. Little Sisters of the Poor cannot be read in any way other than as a landmark win for religious freedom and a restraint on administrative overreach. Rather than uncritically defer to administrative agencies to give or take away religious freedom protections, the Supreme Court actually limited the ability of administrative agencies to ignore the implications their rules might have on religious freedom.

“Our precedents require final rules to articulate a satisfactory explanation for the action,” wrote Justice Thomas for the majority, “including a rational connection between the facts found and the choice made.” Such an explanation, the Court clarifies, provides assurance to the reviewing court that an agency’s actions fully considered the evidence before it.

The agencies that issued regulations under the Affordable Care Act, Justice Thomas noted for the Court’s majority, should have been aware of the Court’s instructions in Zubik v. Burwell, along with the myriad public comments and dozens of court filings all pointing to the impact RFRA would have upon the final rule. Far from being prevented from considering the impact of RFRA, as Pennsylvania and New Jersey argued, the Supreme Court explained:

If the Departments did not look to RFRA’s requirements or discuss RFRA at all when formulating their solution, they would certainly be susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem.

In other words, not only were the administrative agencies right to consider the impact of RFRA on their regulations (and, therefore, how the regulations would affect religious liberty rights); but, because the agencies were aware of the potential impact on religious liberty rights from the public comment process and past lawsuits, ignoring the requirements of RFRA would risk the validity of their rules altogether under the arbitrary and capricious standard.

While the Little Sisters of the Poor opinion may not be the ultimate fulfillment of President Trump’s 2017 Rose Garden prediction that the Little Sisters of the Poor’s “long ordeal will soon be over,” it gave us something even more important for religious freedom: a requirement that agencies engaged in rulemaking not only may but must consider the impact of RFRA (as well as the First Amendment to the U.S. Constitution) on their regulations or risk having those regulations struck down as an arbitrary and capricious exercise of rulemaking power.

As the administrative state continues its decades-long expansion into more and more areas of Americans’ lives, a requirement that administrative agencies respond to; explain; be restrained by; and, ultimately, protect the fundamental right to religious freedom may, in fact, make Little Sisters of the Poor one of the most far-reaching religious liberty opinions of recent memory.

Originally Posted on The Hill July 14, 2020

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