Prof. Michael McConnell — in my view, one of the two top Religion Clauses scholars in the country — was kind enough to pass along these thoughts about the Zubik v. Burwell oral argument, and I thought they were very much worth passing along in turn. (Note that Michael co-filed a friend-of-the-court brief in this case on behalf of several former Justice Department officials.)

The Zubik oral argument: What is the point of this mandate?

Yesterday the Supreme Court heard oral argument in the non-profit religious organization contraceptive mandate cases under the caption of Zubik v. Burwell. In general, the argument confirmed my impression that the government has very little reason to force these religious parties to violate tenets of their faith.

1. First, it was surprising how little the “substantial burden” argument figured in the government’s argument. In all but one of the cases before the Court, the government won solely on lack of substantial burden, with only the D.C. Circuit reaching the government’s affirmative defense of strict scrutiny. But Solicitor General Donald Verrilli spent most of his 45 minutes talking about strict scrutiny, at several times actively trying to avoid the substantial burden question. Indeed, he asked the Court to assume for the purposes of argument that it was to apply strict scrutiny under RFRA. 47:28ff [i.e., p. 47 of the oral argument transcript, line 28, and forward]. Eventually, Justice Kennedy asked Verrilli bluntly if he was conceding the religious exercise/substantial burden part of the case. 45:10ff. And a few minutes later Justice Ginsburg interrupted to ask him the same question. 61:18ff. So it seems the Court will have to resolve the case on the basis of governmental interest, which I have always regarded as its weakest leg.

2. On that point, it is revealing that the Solicitor General tried to change its characterization of the government’s interest – from promoting contraceptive access to promoting contraceptive access specifically through the petitioners’ healthcare plans. Verrilli made clear that only “seamless” contraceptive access through petitioners’ healthcare plans would meet the government’s claimed interest in the case. Indeed, when Justice Sotomayor tried to make the argument that a two-plan system would pass muster, Verrilli disagreed with her. 83:2-18.

One of the problems with this admission is that the government is essentially trying to define the use of a particular means as the compelling interest in itself. That approach to strict scrutiny is entirely circular; it essentially eliminates the least restrictive means analysis by baking the means into the alleged compelling interest.

The Solicitor General never explained why simply allowing petitioners’ employees to purchase health plans on the exchanges would not fully satisfy the government’s interest – as it does for millions of other employees who do not get contraceptive coverage from their employers (those who work for small employers or exempt religious employers, or have grandfathered plans). This point was a major focus of the religious plaintiffs’ argument. See, e.g., 25:22ff, 30:6ff, 34:4ff. And in its brief, the government flatly declared these alternatives were perfectly adequate:

If a small employer elects not to provide coverage (or if a large employer chooses to pay the tax rather than providing coverage), employees will ordinarily obtain coverage through a family member’s employer, through an individual insurance policy purchased on an Exchange or directly from an insurer, or through Medicaid or another government program. All of those sources would include contraceptive coverage.

Gov’t Brief at 65.

Indeed, even as to the employees of these petitioners, the government implicitly concedes that the option of purchasing a plan on the exchanges is just fine, because the government has proposed that petitioners drop their plans and send all of their employees to the exchanges. ETBU Reply Br. at 28. It is hard to fathom why the Court would accept an argument that the exchanges are fine for millions of other people and fine for all of petitioners’ employees, but then suddenly unsatisfactory if only used by the subset of employees who just want a different plan than what petitioners currently offer.

The government’s last gasp is to argue it lacks authority under current law to permit petitioner’ employees to participate in the exchanges on the usual subsidized basis. Putting aside the fact that less restrictive alternatives frequently require changes in the law, this argument does not pass the straight face test. This Administration has exercised extraordinary ingenuity in “interpretation” of the ACA; indeed, it created the existing “accommodation” system, which includes payments of up to 115% of the cost of contraceptives using exchange user fees as the source of payment, out of the whole cloth of administration discretion. It could easily solve this problem if it wanted to.

3. Justice Breyer is evidently struggling with the case. He asked several questions of lawyers for both sides about where courts should “draw the line” about which religious exercise claims get protected and which do not. He seemed skeptical of the idea that the government could win simply by invoking the notion of third party harms. 62:6ff. And he seemed equally skeptical that petitioners should automatically prevail over any statute with exemptions. 38:16ff. As a pragmatic man, he must be puzzled that the government is going to such lengths when it appears so completely unnecessary.

4. One of the most telling moments of oral argument came during General Verrilli’s final two minutes, when Justice Alito highlighted a key government concession—that because some of the petitioners, including the Little Sisters, have a self-insured church plan, the government actually lacks authority under ERISA to make their third-party administrator provide contraceptive coverage. “In that situation,” Justice Alito asked, “will the Little Sisters still be subject to fines for failing to comply?” General Verrilli’s response was astonishing: “No, we don’t think so.” In other words, the government said it has no plans to actually enforce the mandate against the Little Sisters—and, by extension, any of the roughly 500 other religious organizations that have self-insured church plans. And even if the government coerced these organizations to sign its form, this would not make contraceptives flow.

This raises an obvious question: If the government has no plan to enforce the mandate against the Little Sisters, why has it been resisting their case for the last three years? Apparently, the government knows it would be senseless to fine the Little Sisters $70 million per year when the forced compliance would not make contraception coverage available anyway. Why did it wait until oral argument in the Supreme Court to make this crucial concession?

At a bare minimum, the concession establishes a complete lack of a compelling interest, or any interest at all, in forcing the petitioners with self-insured church plans to sign a form that will have no legal effect. More broadly, if Congress did not vest the agencies with authority to make the mandate work as to roughly 500 religious organizations, how compelling could its interest be with respect to the others?

* * *

Religious liberty cases are difficult when there is a genuine conflict between religious convictions and achievement of a democratic goal. How can courts say which of a legislature’s objectives reflect a “compelling” – as opposed to merely a “substantial” – interest, without intruding on the legislative domain? But where, as here, the government can fully achieve its purposes by modest adjustment of means, the judicial task is straightforward. That is why even this deeply divided Court has reached unanimous rulings in all but one RFRA or free exercise case in the last decade.

It is probably too much to hope that the Court will reach anything close to unanimity in a case with the symbolic and cultural valence of this one, but as soon as we get into the weeds of regulatory detail, it becomes obvious that there is no real conflict here. Not a single woman needs to be denied access to contraceptives through a seamless process – and the Little Sisters of the Poor can be left alone to carry on their good works without being required to be the government’s handmaiden for the provision of contraceptives. At a time of rising divisiveness and polarization, it would be greatly calming if the Court could unite in this case to protect the rights of many with absolutely no injury to anyone else, or to the public good.