“Big Win for Little Sisters” is the headline on the cable from the Becket Fund for Religious Liberty. The not-for-profit law firm is referring to the unanimous decision of the Supreme Court to return to the lower courts the Little Sisters’ plea to avoid Obamacare’s birth control mandate. The justices seek a settlement. Meantime they have blocked any fines on the Sisters and other religious litigants for failure to give additional notice that they are opting out. So it is a big win for the heroic nuns — up to a point.

Given the mischief countenanced in at least some of the lower courts, though, it will pay for those who cherish religious liberty in this country to be carry the Constitution as well as the Bible. To avoid being fined for obeying their religious laws, the Little Sisters have had to climb the Bill of Rights as many times as Moses went up on Sinai.* According to a crabbed concurrence in today’s order by the Court, Justices Ginsburg and Sotomayor make it clear that, at least in their view, the lower courts are still free to wheel on the Little Sisters.

Justices Ginsburg and Sotomayor pressed the point that nothing in today’s opinion affects the ability of the Government to ensure that women covered by the health plans of the Little Sisters and other litigants are able “obtain, without cost, the full range of FDA approved contraceptives.” The justices simply said that via the litigation, the Little Sisters and others “have made the Government aware of their view [our italics] that they meet ‘the requirements for exemption from the contraceptive coverage requirement on religious grounds.’”

So the Little Sisters and similarly situated litigants do not have to file with the government the kind of paper work to which they’d objected. The government is free to step in with its own coverage. The litigation substitutes for such paperwork. In other words, the court said it that relieves the Little Sisters of the paperwork to which they objected and said it’s enough that they filed all these legal briefs. “Because the Government may rely on this notice,” the justices were nice enough to add, “the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.”

Justices Ginsburg and Sotomayor warned the lower courts not to construe the punt as signaling where the justices stand. This might not have been so worrisome were The Great Scalia still alive. With Scalia gone, alas, the indications are that should the lower courts fail to find a compromise suitable to everyone, the religious litigants could well end up facing a deadlocked bench. Through no fault of the Becket Fund and the other heroic religious freedom lawyers, the Little Sisters are yet to be fully secured.

President Obama made it his business to step into the middle of this today with the suggestion that Donald Trump’s rise is reason enough to rush Judge Merrick Garland onto the high bench. Our view is the contrary; the predicament of the Little Sisters is all the more reason for the Senate to reject any nominee who is not unambiguously in the religious freedom camp. It’s not just the Sisters, after all, as intrepid as they are; tens of millions of Americans get up every morning and seek to live their lives according to the particulars of religious law.

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* Eight, by the Sun’s count.