The Supreme Court’s ruling this morning in Zubik v. Burwell kicks the can down the road on religious liberty in the United States and substantially raises the stakes of the coming presidential election. At issue in Zubik — better known for one of the plaintiffs, the Catholic order of the Little Sisters of the Poor — was whether non-profit religious organizations are eligible for exemptions from the Department of Health and Human Services’ Contraception Mandate on the ground that compliance would violate their sincerely held religious beliefs.  Instead of deciding the case on the merits, though, the justices decided to send the consolidated Zubik cases back to their respective circuits for reconsideration in light of the parties’ submissions to the Supreme Court.

For advocates of religious liberty, this is far from the worst possible outcome.  The passing of Justice Antonin Scalia five weeks before oral arguments were scheduled to begin in the case understandably raised cause for concern. Justice Scalia had long been an advocate of First Amendment rights and had helped secure the 5-4 majority that carved out a faith-based exemption for closely held corporations in 2014’s Burwell v. Hobby Lobby. Reacting to Justice Scalia’s death, legal scholar Douglas Laycock went so far as to say that the Little Sisters had “lost [their] case” upon his death. Without Scalia’s decisive fifth vote to create a majority, a four-four ruling would simply affirm the decisions of the circuit courts. But this morning, the Supreme Court handed down a decision that punts on the constitutionality of the Contraception Mandate altogether and buys time for the political process to work out a solution.

Under the Affordable Care Act, the HHS has the authority to designate which treatments fall within the category of “preventive care” for which employers must provide insurance coverage. The HHS has designated all FDA-approved contraceptives, including four that prevent the implantation of a fertilized egg, as subject to mandatory coverage. However, the HHS’s designations are governed by broader constitutional and statutory constraints. The First Amendment, of course, protects the right of free exercise of religion. In addition, the Religious Freedom Restoration Act stipulates that the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  Where laws of general applicability do burden a person’s free exercise of religion, the government must show that the law in question serves a compelling government interest through the narrowest possible means (a test of strict scrutiny.)

In 2013, HHS created regulatory exemptions for religious employers — mostly houses of worship and ministries. But the Little Sisters of the Poor, a Catholic order whose mission is to tend to the elderly poor in nursing homes, are not classified as a religious employer because they employ and care for people of all faiths – proof, perhaps, that HHS will allow no good deed to go unpunished. Instead, the government offered them and other religious non-profits like them a so-called “accommodation” through which objecting employers would have to “self-certify” their religious objections to the Contraceptive Mandate. This entailed executing a form under which the nonprofit would shift to its insurer the responsibility of paying for contraceptive coverage. According to the Little Sisters of the Poor, this was not an “accommodation” at all because it forced them to authorize their own insurance plan to provide access to contraceptives.  In effect, they were forced to become complicit in conduct that violated their sincerely held religious beliefs by allowing the government to “hijack” their health plans.

When challenged in the Tenth Circuit, the Court of Appeals ruled that the accommodation scheme did indeed meet the test established by the RFRA: the accommodation was narrowly tailored to further a compelling government interest. So the Little Sisters of the Poor, like other similarly situated plaintiffs, challenged the government’s policy before the Supreme Court.

The justices’ questions during oral arguments this March suggested that the high court was heading toward a four-four decision in the case, which would have left the Contraceptive Mandate intact in almost all states except for those in the Eighth Circuit, which had found that the government’s “accommodation” did not survive strict scrutiny. But on March 29th, one week after oral arguments, the Supreme Court issued an unusual order. It directed the parties “to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” In short, the Court asked the parties to propose their own accommodations.

In their supplemental brief, the plaintiffs offered an array of options that would ensure that employees receive contraceptive coverage from the same insurance company without involving the employer.  An employee of Little Sisters of the Poor could, for example, secure an individual insurance policy from the company, subscribe to a group health plan sponsored by the government, or even purchase a contraceptive-only coverage policy to supplement the coverage provided by her employer.  Indeed, in a staggering admission, the government noted in its reply brief that “the accommodation… could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” In short, the government admitted that the “accommodation” could be tailored more narrowly.

This presents several ways forward for the parties. Either the government can get to work on tailoring an accommodation along the lines of the ones proposed by the Zubik plaintiffs or the litigation will continue indefinitely until a majority decision on the high court is possible. The simplest way forward, perhaps, is for the HHS to revise its definition of a “religious employer” to include organizations like the Little Sisters of the Poor.

No matter what course of action the parties choose, the Supreme Court’s decision this morning does not settle the matter.  In their concurring opinion, Justices Sotomayor and Ginsburg explained the legal and political significance of today’s ruling best, writing: “I join the Court’s per curiam opinion because it expresses no view on the merits of the cases, whether petitioners’ religious exercise has been substantially burdened, or whether the current regulations are the least restrictive means of serving a compelling governmental interest.  Lower courts, therefore, should not construe… today’s per curiam… as signals of where this Court stands.”

Today’s decision invites compromise between the parties. And given the apparently even split among the eight justices, together with the volatile state of politics in this election year, this approach may have been the most sensible one possible for the Court institutionally. But for the Little Sisters of the Poor and other similar non-profit religious organizations, the case remains open, and a new phase of the struggle for religious liberty is beginning.

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