This week the Supreme Court heard oral arguments in Little Sisters of the Poor v. Burwell. The Sisters, joined by many Protestant groups, have challenged the Affordable Care Actâ??s mandate on birth control. Even though the Obama administration devised a method by which religious organizations would not have to pay for birth control coverage, the religious groups still had to start the bypass process by filing a letter. This, the Sisters have argued, made them complicit in a practice (birth control) the Catholic Church forbids. This is the first religious liberty case the court has heard since the passing of Antonin Scalia. It may very well end in a 4-4 tie, which would leave intact lower court rulings, all but one of which favored the government against the Sisters.
If that happens, conservative Christians are likely to think, â??Oh, how we wish Scalia would have been here for this case.â? One problem: he was the author of the most notorious decision regarding religious liberty in the past fifty years. And, irony of ironies, the Sisters are appealing to a law that was passed precisely to overturn Scaliaâ??s infamous decision. Oregon v. Smith (1990) was largely overlooked in all the retrospectives and eulogies for Scalia. In the many obituaries and op-eds I read after his death, not a single one mentioned the case. Yet, this was easily the most significant religious liberty decision of Scaliaâ??s career. And it was also the most reviled.
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