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Opinion Prof. Michael McConnell on <i>Zubik v. Burwell</i> (yesterday&#8217;s Supreme Court RFRA / contraceptive decision)

The Supreme Court building. (J. Scott Applewhite/Associated Press)
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I asked Stanford law professor Michael McConnell — in my view, one of the two top scholars on the Religion Clauses — for his thoughts about yesterday’s Zubik v. Burwell decision, and he was kind enough to pass them along. (Note that McConnell co-filed a friend-of-the-court brief in this case on behalf of several former Justice Department officials.)

Yesterday, the Supreme Court disposed of the “Little Sisters” contraceptive mandate case, Zubik v. Burwell, with a unanimous per curiam ruling. The Court vacated the lower court decisions against the religious objectors and remanded the cases to the lower courts, stating that the parties should be able to “arrive at an approach going forward that accommodates the petitioners’ religious exercise.” In the meantime, the Court said that “the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.” That may not be a total win for the Little Sisters, but it is awfully close.
1. The order provides welcome relief to religious organizations confronting crippling fines for refusing to violate their religious convictions — but its resolution of the case is nonetheless peculiar and seemingly unprecedented. Parties are under no legal obligation to settle, and when they do not and the courts have jurisdiction, the courts decide the legal merits. I have never heard of an appellate court saying, in effect, “No, we’d prefer not to decide the case. Go back to the lower courts and work it out.” The government must be wondering why it has to work out an accommodation to protect the petitioners’ free exercise when it prevailed in the lower courts, in opinions that have not been reversed on the merits.
2. The opinion states that the Court “expresses no view on the merits of the cases.” Therefore no precedent is set. But the decision was basically a quiet, face-saving, non-precedent-setting defeat for the government.
There were two issues still alive in the case: (1) whether the regulations substantially burden the petitioners’ free exercise of religion, and (2) if so, whether the regulations are the least restrictive means of achieving a compelling governmental purpose.
In most of the lower courts, the government prevailed on the substantial burden issue, making it unnecessary to reach the least restrictive alternative question. All it took in the Supreme Court to affirm on that issue was four votes. Game over, win for the government. Instead, the Court vacated the government’s lower court victories. That suggests there were not even four votes for the government’s position on substantial burden. That jibes with the oral argument, in which the Justices appeared unpersuaded by the substantial burden question and the Solicitor General all but abandoned it. See my commentary on the oral argument here.
Unless there is a substantial burden, RFRA does not require the government to employ the least restrictive means, and the possibility of reasonable accommodation is irrelevant. If the perceived existence of “an approach going forward that accommodates the petitioners’ religious exercise” is the reason for vacating the lower court decisions, the Court must not have been willing to affirm the holding that the contraceptive mandate regulations imposed no substantial burden on religious employers who objected to providing contraceptive coverage.
3. That leaves the least restrictive means question. Shortly after the oral argument, the Court asked the parties for supplemental briefs on an alternative approach. In the Court’s words, the religious groups would have “no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice.” Their insurance company would then “separately” provide contraception coverage to the employees — “not paid for by [religious groups] and not provided through the [religious groups’] health plan.” The Court asked the parties if this compromise would work, and both sides essentially said “yes” (although the government did so with much hemming and hawing).
As the Court noted in yesterday’s order, “Both petitioners and the Government now confirm that such an option is feasible.” The government has admitted that the regulations “could be modified to operate in the manner posited in the Court’s order.” This does not duck the least restrictive means question. It answers it.
If the Court did not affirm the lower courts’ substantial burden holdings and the government admitted that it is feasible to achieve its purposes by a means less restrictive than the regulations, the Little Sisters won on both issues, unanimously. Contrary to most press coverage, this was not a “punt.” It was a compromise in which the Little Sisters won the case but no precedent was set for the future. This is unorthodox, but arguably solomonic.
4. So what happens next? The government has two main options. First, theoretically it could decline to cooperate on remand. The Court’s order states that “the parties on remand should be afforded an opportunity” to agree on a method by which the government can ensure contraceptive coverage without compelling the petitioners to violate their religious convictions. It does not say they are required to do so. Somehow, a refusal to cooperate does not seem likely. Having told the Court an accommodation is feasible, the government would be hard-pressed to back away from that concession on remand.
Alternatively, the government can change its regulations to implement the Supreme Court’s compromise. As the Court has said, this would protect religious freedom while “still ensuring that the affected women receive contraceptive coverage seamlessly.” In other words, it is a win-win solution. The Court’s post-argument question deftly exposed the fact that less restrictive alternatives are available, at least for religious employers with standard third-party health insurance plans. Now it is time for the government to adopt one or more of them.
The only genuinely difficult problem is how to accommodate religious objectors that self-insure. It is not clear whether the Justices have grasped the technical dimensions of this problem. At oral argument, the Solicitor General confessed that even under its own regulations, the government had no way to ensure that contraceptive coverage flows when there is no third-party insurance plan available to provide it — and stated that the government would not impose the draconian penalties of the law on religious employers with self-insured church plans. That includes the Little Sisters. It remains to be seen if the government will have more to say about this on remand.
5. In the meantime, the Supreme Court demonstrated that even in these contentious times it can find solutions to practical problems on the basis of reasonable accommodation. Religious freedom has, for complicated reasons, become politically controversial. But reasonable people of good will can often reach accommodations that protect religious freedom without sacrificing the democratic will. That is what RFRA is for.