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‘The Little Sisters will be back in court’: Religious liberty advocates fear Supreme Court win is not final

Conservatives scored two victories at the Supreme Court on Wednesday, but some religious liberty advocates say that the cases open new questions for future litigation.

The two cases, both argued in May because of coronavirus-related delays, concerned the free exercise of religion. The first, Little Sisters of the Poor v. Pennsylvania, exempted the Catholic religious order from an Obama-era contraception mandate. The second, Our Lady of Guadalupe School v. Morrissey-Berru, protected religious schools from nondiscrimination laws in their hiring and firing processes.

While grateful for the wins, which came after the court delivered opinions on transgender rights and abortion that disappointed social conservatives, frequent commentators on the subject said that religious groups still face many challenges.

Senior research fellow at the Heritage Foundation Ryan Anderson predicted that although the court ruled in favor of the Little Sisters with regard to protections set up by the Trump administration, it is likely that when Democrats retake control, those protections will be erased.

“And so, ultimately, the Little Sisters will be back in Court,” he said in a tweet. “I hope I’m wrong.”

Brian Burch, president of the pro-Trump advocacy group CatholicVote.org, made a similar point in a letter to supporters following the decision. Burch noted that former Vice President Joe Biden would likely remove protections for the Little Sisters if elected. Burch said that in both that case and Guadalupe, the favorability shown to the freedom of religious exercise might be a “temporary” arrangement.

“Hostility toward religion is on the rise,” he said. “Hate groups on the left aren’t giving up. Thanks to several key judicial appointments, we have a Court willing to protect us. For now.”

In a concurring opinion, Justice Elena Kagan voiced similar fears, writing that she does not have confidence that the court’s protections for the group will hold up past the Trump administration.

“I question whether the exemptions can survive administrative law’s demand for reasoned decisionmaking. That issue remains open for the lower courts to address,” Kagan wrote.

In a separate concurring opinion, Justice Samuel Alito argued that he worries that the Little Sisters will face future prolonged court battles over the contraception issue.

Other groups were more enthusiastic. The Becket Fund for Religious Liberty, the nonprofit law firm which argued both cases, noted that the wins showed that the court did the “right thing” for religious liberty.

Mark Rienzi, the group’s president, said that the ruling on Little Sisters showed that the court believes in the grand scheme of social priorities, the services the group provides for the sick and elderly have a greater benefit to the country than the contraceptives they would be forced to pay for.

“Governments don’t need nuns to distribute contraceptives,” he said. “But they do need religious groups to care for the elderly, heal the sick, and feed the hungry. These governments all have real work they ought to be doing rather than dividing people with old and unnecessary culture wars.”

Maureen Ferguson, a senior fellow at the religious advocacy group the Catholic Association, said that she hopes the Little Sisters case, which dragged on nearly as long as the Obama-era contraception mandate has been in effect, demonstrates the absurdity of the case against religious groups.

“The idea of dragging nuns to the Supreme Court three times would be laughable if it weren’t so shocking,” she said.

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