Sunday night, the New England Patriots blew their perfect record in a snow-covered thriller at the Mile-High City. Revelry promptly ensued, and not just in Denver, given the Patriot’s status as most-hated team in the league.
The Patriot’s cellar-dwelling reputation is due, in part, to its perceived cellar-dwelling ethics. Hence the enduring impact of the Patriot’s recent Deflate-gate scandal: it just feels wrong to fans that last year’s may have made it to the Super Bowl not by simply being the best, but by breaking the rules.
Something similar has been playing out in federal courts, where the feds were recently caught red-handed. The federal government is in a wrestling match with religious ministries nationwide, trying to hijack their healthcare plans to, among other things, give 10-year-old girls insurance coverage for morning-after pills. Unsurprisingly, the ministries object. So the government uses massive fines for leverage—threatening over $70 million in annual penalties against one of the ministries, the Little Sisters of the Poor.
When the ministries pushed back in court, they initially ran the table, winning 90% of the first round in the lower courts and threatening to turn the match into a blowout. Part of the reason for this lopsidedness was that the feds just didn’t (and don’t) have a good reason for crushing the ministries’ faith—the feds have their own healthcare plans, so if they think handing emergency contraceptives to 10-year-old’s is a good idea, they don’t need to steal the ministries’ plans.
That’s when the feds concocted their own Deflate-gate. Call it Berate-gate: To counter the Sisters’ argument that the government was illegally trying to force their healthcare plans to do sinful things, the government swore that the Sisters were “fighting an invisible dragon” and that no one was trying to touch their plans. In other words: Trust Uncle Sam—those ladies are loony.
It was a lie. And it worked. The government was so successful that it persuaded 7 appellate courts in a row. As one misled court said of the government’s stealth takeover, “Call this ‘using’ the health plans? We call it refusing to use the health plans.” Other judges followed suit, and the match started to tilt back in the government’s favor.
But then something strange happened on the way to the Supreme Court. The government had a bit of a come-to-Jesus moment, perhaps prompted by the not-so-altruistic realization that the high court wouldn’t be as easily beguiled as some lower courts. (Said high court was already very familiar with the government’s arguments, which it had rejected in five earlier emergency cases.) So the feds owned up to the truth: they did want to use the ministries’ health plans.
Within weeks, an appellate court got wise to Berate-gate and issued the first appellate ruling squarely rebuffing the government’s game. And just this month, the Supreme Court rejected the government’s attempt to keep the Sisters from having their day in court, granting the Sisters’ request that the high court review the government’s draconian chicanery.
So the question now is: What new game will the government try to pull? Berate-gate confirmed suspicions that the government will play fast and loose to win. Indeed, the government has oftenflip-flopped in its pursuit of the Sisters—changing its story for why the Sisters must obey, how they must obey, and what “obeying” means. As the Sisters’ attorneys at the Becket Fund for Religious Liberty chronicle, the government has even altered the basic rules of the game at least 8 different times. The overriding impression from all this is that the government is less interested in playing fair than playing for keeps.
This tracks part of the reason Deflate-gate blew up so quickly, and why the recent coin-toss kerfuffle flipped people out: both built on the knowledge that the Patriots had cheated before (in the 2007 video-taping scandal, Spygate) and so could be willing to do so again. Once a cheater may not mean always a cheater, but it does make people cautious.
The Supreme Court would do well to exercise caution now. If the government defends its convoluted rules with “who are you going to believe, me or your lying eyes?,” the justices would be wise to remember that their eyes happen to agree with a 175-year-old order of nuns who take care of elderly poor people. And to recall the old maxim: “Fool me once, shame on you. Fool me twice, shame on me.”
For its part, the government should come clean, own up to Berate-gate, and admit that it prefers hijacking the Sisters’ healthcare to using its own. A free, self-respecting country should never allow such a gratuitous, conscience-throttling takeover. But if the government’s going to try, it should do so fairly. Without cheating. After all, if our nation is going to crush nuns, we should at least dirty our hands with eyes wide open.
J. Kenneth Blackwell serves on the Board of Directors of various high-profile organizations including the United States Air Force Academy Foundation, the Becket Fund for Religious Liberty, and the National World War II Museum. He is a member of the Council on Foreign Relations and the Board of Advisors of the Jewish Institute for National Security Affairs.