The following comes from a July 1 story on Religious News Service.

When the Supreme Court on Monday (June 30) issued a split decision narrowly backing the right of for-profit corporations to deny contraception coverage to their employees for religious reasons, many assumed that faith-based nonprofits would have it easy when their own cases eventually reach the high court.

“The death knell is sounding for the HHS mandate,” said Lori Windham, an attorney at the Becket Fund for Religious Liberty, which is representing the Little Sisters of the Poor, an order of nuns, as well as other religious groups that object to the Health and Human Services Department policy requiring birth control coverage.

Windham noted that in two rulings by lower courts on Monday, several of Becket’s faith-based clients received last-minute relief to shield them from complying with the mandate, which takes effect today (July 1).

“The ruling in Hobby Lobby and then these two rulings in quick succession show that the HHS mandate is on its last legs when it comes to religious nonprofits,” Windham said.

The Little Sisters of the Poor organization was founded in the 1840s by Jeanne Jugan. Its members take four vows, those of chastity, poverty, obedience and hospitality. Public domain image

Yet many analysts say that in fact what worked for Hobby Lobby — the national craft store giant owned by the Green family, who are evangelical Christians — may not necessarily work for the Little Sisters, who operate nursing homes for the poor around the country.

The nuns are the main plaintiff for a range of religious nonprofits and institutions who argue, in cases that paralleled the claims of for-profit businesses, that complying with the Obama administration’s mandate to provide free birth control coverage would violate their religious freedom because they object to contraception.

So when those cases reach the Supreme Court, why wouldn’t the Little Sisters eventually receive the same treatment, or even greater deference, than a corporation like Hobby Lobby or Conestoga Wood Specialties, its Mennonite-owned co-plaintiff?

The key difference is that the Health and Human Services Department (HHS) has already offered an accommodation to faith-based nonprofits that allows them to sign a waiver giving a third-party administrator permission to take care of the birth control coverage, with no further involvement by the religious group.

The Little Sisters and others argue that even signing such a waiver entangles them in something they view as morally objectionable. (Hobby Lobby and other plaintiffs do not object to contraception per se but are concerned about what they say is mandated coverage of abortion-causing drugs.)

But Justice Samuel Alito, writing for the majority in Monday’s 5-4 decision, suggested that the accommodation offered to religious groups could have been a fine solution if provided to for-profit corporations as well….

Writing for Religion News Service, Mark Silk, director of the Leonard E. Greenberg Center for the Study of Religion in Public Life at Trinity College, also predicted in March that the justices would decide as they did this week — and on Monday he wrote that if they follow their logic when the faith-based groups come before them, the Little Sisters et al. could be in trouble.

The key factors are twofold, Silk explained:

One is that the majority based their decision on the Religious Freedom Restoration Act, or RFRA, of 1993, which requires that the state must have a “compelling interest” if it is to infringe on religious rights, and it must use “the least restrictive means” possible.

The majority essentially assumed, but did not rule, that the government did have a compelling interest in providing birth control coverage to women. But the five justices said the government could find a better, less restrictive way to accomplish that goal, like paying outright for the coverage.

Yet Justice Anthony Kennedy, in a concurring opinion, pointedly noted that “the means to reconcile those two priorities are at hand in the existing accommodation.”

And Kennedy is the second factor clouding prospects for the nuns and others, because he is considered the swing vote on the court, and when the Little Sisters’ case comes up he could swing the other way.

In fact, the Hobby Lobby decision, Silk predicted, “will prove to be a significant setback for the Catholic bishops and other free exercise maximalists, a good omen for contraception coverage advocates, and a fine result for those interested in a reasonable balance of the interests at hand….”

To read the entire story, click here.