Zubik: A curse and a blessing

Printed from: https://newbostonpost.com/2016/05/18/zubik-a-curse-and-a-blessing/

To the surprise of no one who has paid any attention to the litigation, the post-Scalia Supreme Court this week resolved the challenges brought by religious groups to Obamacare’s contraceptive mandate without issuing a sweeping decision one way or the other. Instead, the Supreme Court’s decision in Zubik v. Burwell vacated the lower court decisions under review and sent the litigation back to the courts of appeals, with a not-so-subtle hint that the parties should settle on terms suggested by the Court.

Many in the media are suggesting that the Court “punted.” The Court did no such thing. The result is a short term victory for religious liberty advocates, but the longer term implications of the result are more troubling.

By way of background for those not familiar with the litigation: Obamacare requires employer-provided insurance plans to provide free contraceptive coverage, but provides various exemptions and accommodations for religious employers. A group of women religious, the Little Sisters of the Poor, objected to a requirement of the accommodation for non-church religious groups, specifically that such groups file a form with their insurer declaring their religious objection to contraception coverage. That filing would then trigger the insurer itself covering the contraceptive piece of the insurance plan. The Little Sisters, and many other religious groups, viewed their filing of the form as an affirmative act making them complicit in the supply of abortifacient contraceptives, a grave sin in their eyes.

While it is impossible to know for certain, it seems likely that with Justice Scalia the Supreme Court would have struck the form requirement down under the Religious Freedom Restoration Act (RFRA), an expansion by Congress of the First Amendment’s Free Exercise Clause applicable to federal action. One month after Scalia passed away, however, the Court took the highly unusual step of asking the parties to file new briefs addressing a compromise solution of the Court’s own devise: what if insurers themselves, without the need for a new form to be filed, automatically provide contraceptive coverage whenever a religious group contracts for health insurance and elects not to include contraceptive coverage?

In their briefs the religious groups agreed that this solution would address their concerns with the form requirement, and the federal government grudgingly agreed that so long as contraceptive coverage is provided by insurers, it too could live with this approach. Thus, the Supreme Court felt justified in sending the cases back down to the lower courts with a suggestion that the parties settle on these terms.

This outcome was, to some extent, a victory for the religious groups. Not the grand victory for religious liberty they may have obtained with Scalia on the bench, but a victory nonetheless. After all, most lower federal courts to consider the RFRA claims had rejected them, and the Supreme Court wiped those decisions from the books. The government’s concession that it can live with a no-form solution also probably signals a death knell for the form requirement (even if the parties cannot hammer out a global settlement), as courts are now unlikely to view a form requirement as the “least restrictive means” RFRA demands for government burdens on religious practice.

And yet. Justice Scalia is gone, and Justice Kennedy – a member of the majority in the Supreme Court’s 2014 Hobby Lobby decision recognizing religious liberty rights for certain for-profit corporations (also in the context of the contraception mandate) – is, at nearly 80 years old, surely soon to follow.

If Hillary Clinton beats Donald Trump in the November election, the narrow 5-4 majority for religious liberty that died with Justice Scalia could quickly turn into a 6-3 majority in the opposite direction. Such an ascendant majority may not be shy about flexing its muscles; Justices Sotomayor and Ginsburg filed a concurring opinion in Zubik reminding lower courts they are free to reject the religious groups’ claims should settlements not occur.

The religious groups thus go into settlement talks knowing that if somehow these cases do wind up before the Supreme Court again, there is a very good chance they will lose. This matters not only for the form requirement, but for other aspects of this litigation that the Supreme Court largely ignored (e.g., how to accommodate self-insured religious groups who do not contract with a separate insurer). As a result, it would not be entirely surprising if the religious groups allow discretion to be the better part of valor and settle on such terms as they can obtain.

Indeed, it would not be entirely surprising if this “punt” by the Court constitutes the high water mark of religious liberty litigation. Religious groups, having enjoyed a string of recent victories at the Court, may be spending the next few decades wandering in a hostile jurisprudential wilderness.

Kevin P. Martin

Kevin P. Martin

Contributing columnist Kevin P. Martin is a constitutional and regulatory law expert practicing in Boston. The views expressed in this column are his own and not those of his law firm. You can read his past columns here.

Comments

comments