The trial of the Little Sisters of the Poor, legal niceties apart, is about whether or not they are free to love

The seems to be little hope for the Little Sisters of the Poor. Even as their case is heard before the US Supreme Court, and even as optimistic and compelling arguments are being advanced by their legal team, the ideological entrenchment of the eight current justices means that the best they can expect is a split decision of 4-4.

Legally, this would mean that the question before the court was “affirmed by an equally divided court”, leaving in place the lower court decisions which had been appealed to it. In the Little Sisters of the Poor’s case, this would mean that there was a judicial mess, since a number of cases, with decisions pointing in different directions, are being heard together. So the various contradictory findings of different lower courts would be left in place, eventually necessitating another hearing to resolve the issue when the court is back at full strength. Given the state of the current presidential election, it seems highly unlikely that the much missed Justice Scalia’s vacant chair will be filled by someone sympathetic to the Sisters’ cause so, in the short or long run, the writing appears to be on the wall.

The legal issue being debated is, technically, whether the Obama administration’s healthcare laws create a workable loophole for religious societies and organisations to avoid having to pay for procedures and products (like abortion-inducing birth control) which go against their beliefs. Leaving aside the chop-logic being debated before the court, and even overlooking the absurdity of a law which mandates, whoever is paying the bill, that an order of celibate nuns provide contraceptive and abortive health care coverage, what is at stake is the separation, if any is left, of the state from society. Is it permissible for people, or groups of people, to serve their fellows outside of the control of the government?

At its most basic level, charitable work is local and community driven, it is the work of a society, on whatever scale, to help those least fortunate among them. It is a human impulse that, at its root, should be totally separate from the function of government. But, as our expectations of what the government can and should provide have changed, and out of essentially noble intentions to be sure, the emphasis of who is doing what and for whom has changed as well.

Charities are often spoken of as “collaborators” with the government, and the shift over the last century has been from the government assisting in charitable works, to charities themselves becoming, almost, contracted providers for government services. In this country, their work has reached an industrial scale, becoming the “third sector”, floating somewhere between the government and private enterprise. The works of service which they do are no longer defined by the people who set out to do them, but by the relevant government department whose overall responsibility that work now is.

The legal definition of a charity rests on the premise that it does what it does without making a profit. But the root of the word “charity” is, of course, in caritas – love. A government can legislate, it can allocate funds, it can draw up plans, but it cannot love, only people can. The service of love, if it is to truly be a service, must come from an internal impulse. This is something organic and personal. By industrialising works of charity, and regulating how and by whom they can be done, we encourage a culture of indifferentism, in which the command to love our neighbour has been outsourced.

In Charles Dickens’ A Christmas Carol, Scrooge famously renounces works of charity, insisting that his taxes go to pay for the workhouses and orphanages, so the poor must go there. In a world where the government absorbs the collective responsibilities of society, and then zealously defends them as its own, we effectively enshrine in law the response of Scrooge, the man without charity.

The trial of the Little Sisters of the Poor, legal niceties apart, is about whether or not they are free to love – is there anymore basic freedom than that?