From the Supreme Court on down, federal courts have repeatedly protected Catholic nuns from compelled participation in activities that violate their faith, such as abortion and birth control coverage in their health plans, in Democrat-run states and presidential administrations.

Always hoping for a miracle in court, New York is again requiring a religious order to carry out the state's ideology, this time as it applies to gender identity.

The Dominican Sisters of Hawthorne and their Rosary Hill Home, founded by the daughter of Scarlet Letter novelist Nathaniel Hawthorne, sued Gov. Kathy Hochul and top officials in the state Department of Health last week for threatening to shut down their 125-year-old ministry for refusal to treat men and women interchangeably.

The home provides "palliative care and comfort to indigent cancer patients in their final days" free of charge and without accepting government money, relying on donations.

The lawsuit notably argues that New York’s LGBTQ Long-Term Care Facility Residents’ Bill of Rights is not religiously neutral because it exempts facilities run by Christian Scientists, carving out "bona fide members and adherents of a recognized religious organization whose teachings include reliance on spiritual means through prayer alone for healing."

This alleged Establishment Clause violation mirrors a Maine law struck down by SCOTUS for allowing families to use tuition assistance at religious schools with "watered down" beliefs, in Justice Samuel Alito's words, but not "sectarian" schools, in the law's words.

The Dominican nuns also argue the law violates the 154-year-old First Amendment doctrine of religious autonomy by requiring them to ignore the "Ethical and Religious Directives for Catholic Health Care Services" of the U.S. Conference of Catholic Bishops through state-enforced policies, training and speech mandates.

The mandate "intrudes upon this personal, bodily religious ministry, elements of which include the Sisters’ creating welcoming bedrooms for each patient, caring for their bathroom needs, dressing them and even grooming their hair and nails," the suit says, also arguing the mandate violates the related ministerial exception.

Blue states were put on notice when Washington state belatedly recognized the doctrine in a legal settlement last fall with Catholic dioceses and the U.S. Justice Department. The Evergreen State had required priests to violate the seal of confession when penitents confess to suspected child abuse or neglect, but not lawyers who learn the same information from clients.

The nuns asked the state DOH for an exemption March 5 but have yet to hear back from the agency, putting the ministry at risk of "fines, injunctions, potential loss of licensing, and imprisonment," the suit says. "A State that exempts Christian Science facilities relying on prayer alone cannot plausibly claim a compelling interest in forcing Catholic facilities to comply."

DOH told the National Catholic Register it doesn't comment on litigation but is "committed to following state law, which provides nursing home residents certain rights protecting against discrimination including, but not limited to, gender identity or expression."

The Register emphasized how little attention the bill got upon introduction in June 2023, drawing only three questions on the Assembly floor from Republican lawmakers, "mostly informational and none hostile," and no public hearing. It passed both chambers widely.

The sisters didn't know about the law until DOH started notifying them two years ago, according to their lawyer, Martin Nussbaum. He told the Register they aren't aware of any patient "who was wanting to make the gender journey, to transition," making the law an exercise in "gender ideology virtue signaling."

Must affirm 'romantic' behavior between homosexuals

The agency's own records show "zero complaints" and "zero citations" against Rosary Hill Home in the four-year reporting period through this January, and no enforcement actions in the past five years, amid 55,000 complaints against other nursing homes and an average of 23 citations per home in the Empire State over the same period, the suit says.

Yet the plaintiffs received three "Dear Administrator" letters in less than a year laying out their obligations under the law, which requires treatment by gender identity rather than sex in both conduct and speech.

Facilities must assign residents to sex-specific rooms by their gender identity when requested, let them use opposite-sex restrooms and wear opposite-sex clothing, and use their preferred name and pronouns "even if the resident is not present," the law says.

This means housing "biological men in women’s rooms even over the opposition of a female roommate" and also letting residents' visitors use opposite-sex restrooms, the Catholic Benefits Association, which counts the plaintiffs as members and is paying for their lawyers, wrote in a press release.

They also must give DOH's "cultural competency" training on LGBT residents every two years to all resident-facing employees and independent clinical contractors and ban facilities from hiring untrained staff, the suit says. 

The materials are "ideological in nature and are aimed at educating workers on what the State believes to be 'affirming' care for LGBTQIA+ people," forcing the plaintiffs to extol the necessity of preferred pronouns and usage of opposite-sex restrooms and, in the law's words, affirm "romantic" behavior between homosexual residents and their "sexual health."

The latter is a euphemism for "accommodat[ing] patients desire [sic] for extramarital sexual relations," the CBA said. 

Finally, the law compels the sisters to utter "false speech" in the form of a public notice they must post in Rosary Hill Home, the suit says. 

The notice says the facility does not permit "discrimination" on the basis of gender identity as the state defines it and tells residents how to file complaints with the ombudsman who oversees such facilities.

By refusing to comply, the plaintiffs risk enforcement at any time: up to $2,000 per violation and $5,000 for "repeat offenses."

The law also carries individual penalties of up to $10,000 and a year in prison for "willful violation," which is simply a "knowing" violation with "no element of evil motive required," the suit says. The home's nurses also risk loss of their professional licenses for noncompliance.

"Across seven independent constitutional grounds, New York’s Mandate demands that the Dominican Sisters of Hawthorne abandon their religious beliefs or abandon their 125-year mission of mercy to the dying poor," the suit says.

It seeks a declaration that the mandate violates the plaintiffs' First and Fourteenth Amendment rights and preliminary and permanent injunctions to stop its enforcement against them.