Sonia Sotomayor. (Photo: Diego M. Radzinschi/NLJ.)
Less than a week after its controversial contraceptive insurance ruling, divisions within the U.S. Supreme Court surfaced again Thursday when the justices, over three dissents, granted an injunction pending an appeal to an Illinois religious college objecting to the government’s accommodation for religious nonprofit organizations.
In a sharply worded dissent, Justice Sonia Sotomayor, joined by justices Ruth Bader Ginsburg and Elena Kagan, wrote that just this week in Burwell v. Hobby Lobby, the court concluded “that the accommodation ‘constitutes an alternative that achieves all of the gov­ernment’s aims while providing greater respect for reli­gious liberty.’ Those who are bound by our decisions usually believe they can take us at our word. Not so to­day.”
The court’s action, she added, “evinces disregard for even the newest of this court’s precedents and undermines confidence in this institution.”
Wheaton College in Illinois contends that its religious beliefs would be violated if it must sign a government form certifying that it objects to providing contraceptive coverage in its student and employee health insurance policies.
Signing the form, it says, makes it complicit in providing contraceptives that it believes result in abortion because the form, in turn, notifies its insurer or third party administrator of their obligation to provide the coverage.
In Wheaton College v. Burwell, Wheaton contends that the accommodation substantially burdens its exercise of religion in violation of the Religious Freedom Restoration Act. There are numerous lawsuits working their way through the lower courts making the same legal claim.
In issuing the injunction, the court, in an unsigned order, said the college could inform the secretary of Health and Human Services in writing that it is a religious nonprofit organization objecting to the coverage requirement.
The order added, “Nothing in this order precludes the government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the act.” It also stated that the order should not be construed as an expression of the court’s views on the merits.
Sotomayor said the court granted Wheaton a form of relief “as rare as it is extreme,” an injunction blocking the operation of a law and regulations in a case in which the courts below had not yet decided the merits of Wheaton’s claims and had declined the college’s requests for similar injunctive relief. The three dissenters said Wheaton had not satisfied the requirements for injunctive relief.
In telling Wheaton that it could simply notify the government in writing of its objection, Sotomayor said the court had “no business rewriting administrative regulations” that would create unnecessary costs and layers of bureaucracy.
“Our jurisprudence has over the years drawn a careful boundary between majoritarian democracy and the right of every American to practice his or her religion freely,” Sotomayor wrote. “We should not use the extraordinary vehicle of an injunc­tion under the All Writs Act to work so fundamental a shift in that boundary.”
Justice Antonin Scalia concurred in the result.