The Supreme Court should, as soon as circumstances permit, put an end to this nonsense.

The latest ruling against the Little Sisters of the Poor comes from a judge, Ed Whelan notes, who has a history with them. This long-running legal saga concerns the religious group’s objections to facilitating insurance coverage for contraception.

In 2019, Judge Wendy Beetlestone made the preposterous argument that the Religious Freedom Restoration Act, while authorizing judges to exempt religious believers from regulations that burden their faith, denied any such authority to executive-branch rulemakers. Never mind that the U.S. Supreme Court, three years earlier, had unanimously urged the executive branch and religious objectors to reach an agreement.

She has retreated from that argument — after a 2020 Supreme Court case in which five justices called it “without merit” and the other four declined to defend it — but now presses the case that the first Trump administration’s decision to grant broad exemptions from the contraceptive mandate violated the Administrative Procedure Act’s prohibition on rules changes that are arbitrary or capricious. (It’s almost as though she is looking for grounds to rule against the Little Sisters.)

One reason for considering the exemptions arbitrary, she says, is that they apply to publicly traded corporations. She thinks she has a gotcha here in Justice Samuel Alito’s majority opinion in Hobby Lobby, which said that

it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies.

Judge Beetlestone goes on to note that the Trump administration had explicitly agreed that not many corporations would have religious objections to providing contraceptive coverage. The executive-branch agencies that granted those corporations religious exemptions anyway were, she claims, “talking out of both sides of their mouths.” She adds, “To simultaneously hold two conflicting positions regarding the same issue is, at its core, arbitrary.”

But this is nonsense. The position of the Trump administration’s rulemakers was a) few corporations are going to seek an exemption but b) if they want one, they can get one. There’s no inconsistency between those views, and an administration that wants to comply with the Religious Freedom Restoration Act might well decide that giving the exemption to the few companies likely to seek it is the right course.

The Supreme Court should, as soon as circumstances permit, put an end to this nonsense. And progressives should find a better hobby than harassing the nuns.