At The Volokh Conspiracy today, I have a post on the latest Contraception Mandate case to reach the Court: the Little Sisters case, which was the subject of our most recent Legal Spirits podcast with Kevin Walsh. I write that litigation about the Mandate, which has been going on for about a decade, is like that famous lawsuit in Bleak House, which dragged on year after year.
Why has the Mandate litigation lasted so long? I argue it’s a matter of principle, for both sides:
Why does the Mandate litigation go on and on? As I said, it’s not a question of money. Lawyers are not getting rich on these cases. The litigation continues because people care deeply, as a matter of principle, about the result, and because each side views the other as an existential threat. For proponents of the Mandate, it’s about women’s health and equality, and about beating back the obscurantist forces that threaten both. For opponents, it’s about affirming their deepest faith commitments, notwithstanding pressure from the state and progressive opinion that seeks to crush them. Even when a practical solution seems available—as the Court noted in Zubik—the parties find it difficult to compromise. The symbolic stakes are too high.
In short, the Contraception Mandate litigation, like so many other disputes over law and religion, reflects the deep polarization in our society. As long as that polarization continues, cases like Hobby Lobby, Zubik, and Little Sisters will continue to arise—as well as cases like Masterpiece Cakeshop, Fulton v. City of Philadelphia, and many others.
Readers can find the whole post here.