The Little Sister’s Last Stand for Religious Liberty

The Supreme Court recently heard oral arguments in the case of Little Sisters of the Poor v. Burwell. This is a case in which a small order of nuns is seeking exemption from an Obama Administration requirement that they help distribute free contraceptives and abortifacients (drugs that cause abortions) through their government-mandated healthcare plan. Why does the Obama Administration need to require that a small order of Catholic nuns help distribute contraceptives and abortifacients? Certainly this administration is committed to making such products as widely and freely available as is humanly possible. But there simply is no need to require that the Little Sisters of the Poor provide the administrative machinery for any of their employees who might happen to want them to get them through their health insurance administrator.

In its arguments to the Supreme Court, the Obama Administration has said that it is imperative that distribution of contraceptives and abortifacients be “seamless,” meaning as simple as possible. But the government could simply provide them directly or through a third-party provider, without making the Little Sisters complicit in the process. Some opponents of the Little Sisters’ right not to formally cooperate with acts (contraception and abortion) directly contradicting their deepest religious convictions have pointed beyond these nuns for an explanation. On this view the real problem is not this small religious order, but the religious colleges and other institutions that also would escape complicity if the Obama Administration made exceptions to its contraception/abortifacient mandate. Such an eventuality would not, in fact, pose any significant issue for women seeking the drugs in question (again, they could simply be provided more directly), but this shows the real thrust of the “seamless” requirement.

Little Sisters of the Poor is not about contraception or even abortion per se; it is about the Obama Administration’s drive to assert control over religious dissenters, and Catholic dissenters in particular. Obviously, where evangelical and other Christians (though not Muslims) dissent from Obama Administration orthodoxy (as, for example, when they refuse on religious grounds to affirmatively cooperate in celebrating same-sex unions), they also will be punished. But the single most organized institution dissenting from the Obama Administration’s cultural program, even referring to it as the Culture of Death, is the Catholic Church. Individual politicians and other putative Catholics have sided with the Administration on issues like abortion, but the Church as an institution has stood firm, even bringing otherwise recalcitrant educational institutions into line where Catholic doctrine explicitly forbids formal cooperation with Administration policy.

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This is far from the first time those wielding political power have sought to bring the Church to heel. One could draw more dramatic comparisons, here, but the closest parallel is in late-nineteenth-century Germany. During the 1870s and 1880s, Otto von Bismarck, Germany’s Iron Chancellor, waged an intense kultukampf—cultural struggle—against the Catholic Church. There were kulturkampfs in other nations during this era, and progressives often attempt to paint these cultural civil wars as necessary parts of democratization, in which the Church was made to give up its unwarranted role in public life. But the reality, as shown most vividly in Germany, was a drive by the state to gain unchallenged power to shape the national culture as it saw fit.

Catholics had long been distrusted in Germany, and especially in Prussia, the eastern province that had conquered and otherwise come to dominate what became the German Empire. Adherence to a “foreign prince” (the Pope) and to a magisterium that judged state action according to a higher law made Catholics, in Bismarck’s view, disloyal. The consequences were significant. In a series of legislative acts beginning in 1871, the German government declared its right to control the Church, and acted to make that claim a reality. Church land was confiscated. Priests were forbidden to voice political opinions from the pulpit and from teaching in public schools. Catholic schools were subjected to state inspection and control. The Jesuit and other related orders were dissolved in Germany. The appointment of priests and bishops was brought under state control. Catholics were required to gain civil recognition of all marriages, with dissenting priests being exiled or imprisoned.

Catholic resistance eventually forced a compromise, but not before the German state had gained unquestioned control over education—including in Catholic schools. The formation of Catholic children’s character has been seized and never returned by the government. In addition, the Church never regained autonomy in her internal administration. Through a variety of means, political as well as cultural, German Catholics continued to assert their independence from the state and to oppose further state hegemony over religious and spiritual life. But state control over all education has proved permanent, the Church remains a subservient client of the German (as so many European) states, and Catholicism and the culture of life there have never recovered.

One central weapon at Bismarck’s disposal during the kulturkampf was the power of the purse. The state paid the salaries of priests, bishops, and teachers and used the threat (and at times reality) of suspending salaries to exercise powerful influence over vast swaths of religious conduct. All churches depended on tax monies for their sustenance (as remains the case to this day in most of Europe).

In the United States, of course, the government historically has lacked this leverage over the Church. Then came Obamacare (officially called the “Affordable Care Act”). The American kulturkampf, while attempted with some vigor under President Woodrow Wilson, never really gained ascendency in the United States for the simple reason that the federal government did not have sufficient leverage to make the Church bow to its will. This has changed. With and through Obamacare the federal government has established a legal framework by which to penalize and even shut down organizations that stray too far from official policy on essential matters of public doctrine, including in regard to essential cultural institutions like the family. Obamacare’s mandate that employers provide health insurance approved by the federal government provides a degree of bureaucratic control over religious institutions of which the government previously could only dream.

For several decades now ideologues committed to secularization have sought to empty religious expression from the public square. Largely successful in this effort, they nevertheless have failed in the larger task of transforming our culture into a copy of Europe, in which marriage is one option among many, children are raised by the state, and religious observance is both safely hidden and rare. Religious institutions, forced to the margins of public life, continue to work and even thrive as they seek through preaching and good works to protect their flocks and spread the message of religious truth, and even of the essential truth that religion must not only be believed, but lived. In charitable and especially educational organizations, the Catholic Church in particular continues to offer to all Americans a model of an integrated life, in which each of us can fulfill our nature, flourishing as full human beings even in the face of public disdain.

The crumbling of many Catholic institutions (universities in particular) through their welcoming of every new form of cultural pollution is no secret. But even Jesuit institutions have been unwilling, where abortion and contraception are concerned, to defy explicit Church doctrine. The core norm of a culture of life remains active throughout the Church. From this even the most corrupt institutions might recover a deeper understanding of the natural law and its implications in our decaying social order.

Should the Obama Administration succeed in forcing dissenting religious institutions to bow to its contraception/abortifacient mandate, the Church will be made into an administrative unit of the federal government. The full ramifications of this transformation will take time to play out. But the federal government’s right to force religious organizations to violate conscience in service to the state even in matters of purely internal administration will have been established. The Church’s independent role as a conscientious check on power will have been fatally compromised. And power politics, already dominant, will reign supreme.

Editor’s note: This column first appeared April 3, 2016 in Imaginative Conservative and is reprinted with permission. Pictured above is Loraine Marie Maguire, Mother Provincial of the Little Sisters of the Poor, speaking before the Supreme Court building on March 23, 2016. (Photo credit: Catholic News Agency)


  • Bruce Frohnen

    Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

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