The Supreme Court sent the latest challenge to Obamacare — for requiring religious organizations to provide contraceptives as part of the health care insurance offered to employees — back to the lower courts. Expect liberal commentators to complain that the Court’s failure to decide the case is another example of the disaster for the judiciary unless the Senate confirms Merrick Garland as a Justice.
Claims that the Court urgently needs a ninth Justice are silly. In fact, this case highlights why. Our nation has 13 appeals courts, which decide as a final matter more than 95 percent of all federal cases. Obamacare will continue to operate in violation of the Free Exercise Clause, in my opinion, throughout most of the country. In one part of the country, the mandatory contraceptives requirement will not. Conflicts in federal law can often persist for years, if not decades. While our federal system abhors inconsistent interpretation of federal law throughout the country, it can wait until the new President and Congress are seated in 2017.
In fact, the Court’s refusal to delay offers the political branches some much needed breathing room. One thing we know for sure is that the primary pusher of this conflict — President Obama — will exit the political scene in January. The next President, whether Hillary Clinton or Donald Trump, can end this encroachment on the Free Exercise rights of religious organizations by ordering the regulation dropped. Congress can also end the fight by granting religious groups a clear exemption to the law.
A political fix would allow our elected leaders to show the respect for religious minorities and the constitutional rights of us all that the Bill of Rights demand and that Americans want. We should not rely only on the courts to prevent a liberal Washington DC elite from dictating the overthrow our nation’s settled tradition of religious liberty.