Unanimous, unsigned opinion avoids ruling on RFRA



By BJC Staff Reports

WASHINGTON — In an unexpected move, the U.S. Supreme Court issued a short, unsigned opinion on May 16 that sends the contraceptive mandate cases back to the lower courts.

The Court’s per curiam opinion in Zubik v. Burwell did not rule on whether the accommodation for religious employers violates the 1993 Religious Freedom Restoration Act (RFRA), but it instead provided instruction based upon the supplemental briefing ordered by the Court in March. That order asked the religiously affiliated nonprofits and the government to address how the organizations’ employees could receive seamless contraceptive coverage without the organizations providing separate notification of their objection.

In Zubik, religiously affiliated nonprofits challenged the government’s accommodation procedure designed to allow them to avoid paying or contracting for contraception. The Baptist Joint Committee for Religious Liberty filed a brief in the case supporting the government’s effort to accommodate religion.

“Today’s decision does not resolve the controversy, nor will it necessarily change the results in the lower courts that previously ruled in favor of the government,” said Holly Hollman, general counsel of the Baptist Joint Committee. “It does, however, allow the parties to further refine their arguments about notice requirements and how employees will be covered.”

The BJC’s brief explained how, under RFRA, the far-reaching claims of the nonprofits can harm religious liberty.

“The government provided a process that allows objecting employers to avoid paying or contracting for contraceptives while ensuring that employees still would receive those benefits,” Hollman said. “Instead of ruling on whether this accommodation satisfies the Religious Freedom Restoration Act, the Court is directing the lower courts to reconsider the question in light of the parties’ supplemental arguments.”

In its decision, the Court did not interpret RFRA’s provisions. The opinion states: “In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”

In a concurring opinion, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, noted that the Court’s opinion should not be interpreted as supporting the nonprofit organizations’ position that anything short of a “separate policy, with a separate enrollment process” would be unacceptable. It reminds the lower courts that they may reach the same conclusion they reached before or a different conclusion.

The decision is the latest in a case full of unusual developments. The Court’s March 29 order for supplemental briefs came six days after the oral argument. The order asked the parties to file additional briefs addressing whether and how their employees can obtain contraceptive coverage through the organizations’ insurance companies “in a way that does not require any involvement of [the organizations] beyond their own decision to provide health insurance without contraceptive coverage to their employees.” Those briefs led to the Court’s decision.

RFRA provides legal protection against government actions that substantially burden the exercise of religion. The BJC chaired the diverse coalition of organizations that pushed for the legislation, providing a high legal standard for all free exercise claims without regard to any particular religious practice. The statute was intended to restore the “compelling interest” standard, which the Supreme Court used prior to its decision in Employment Division v. Smith (1990). The law creates a delicate balancing test between substantial burdens on religion and the compelling interests of the government.

Zubik v. Burwell is the official name for the consolidated cases, which include religiously affiliated hospitals, schools and other nonprofit charities (including Little Sisters of the Poor, which is often mentioned in news coverage of the cases) challenging the government’s religious accommodation. The BJC’s brief was written by law professor and religious liberty advocate Douglas Laycock, and it was mentioned several times during the March 23 oral argument. Visit our website at BJConline.org/Zubik to read the BJC’s brief and access additional information about the case.


From the June 2016 edition of Report from the Capital. Click here to view the issue as a PDF document.