Zubik v. Burwell : SCOTUS avoids RFRA ruling, sends contraceptive mandate cases back to lower courts

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Click here for a PDF handout of frequently asked questions

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 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 (BJC) 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.”

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, notes 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.

Today’s decision is the latest in a case full of unusual developments. The Court’s March 29 order for supplemental briefings came six days after oral argument. The order asked the parties to file new 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 today’s decision.

During the March 23 oral argument, the eight justices appeared divided. The BJC’s brief was mentioned several times during the argument and may have inspired the Court’s hypothetical example in its order for supplemental briefs.

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 unique balancing test between substantial burdens on religion and the compelling interests of the government.

The BJC’s brief was written by law professor and religious liberty advocate Douglas Laycock. For more, read about the case below.



Zubik v. Burwell: Consolidated contraceptive mandate cases

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BJC amicus brief

On May 16, 2016, the U.S. Supreme Court released a short, unsigned opinion in Zubik v. Burwell, sending the cases back to the circuit courts without ruling on the merits. The Court instructed the lower courts to give the parties an opportunity to reach a compromise based upon the refined positions in their supplemental briefs submitted after oral arguments. The Baptist Joint Committee for Religious Liberty had filed a friend-of-the-court brief defending the sufficiency of the government’s religious accommodation and responding to arguments that would undermine the Religious Freedom Restoration Act.

Learn more about the case in the FAQ below. You can also read our brief, Brent Walker’s statement after the March 23 oral arguments, Don Byrd’s recap of oral arguments, and watch a short video from General Counsel Holly Hollman introducing our brief in the case.

The Supreme Court heard the oral argument in Zubik v. Burwell on March 23. In this video filmed in front of the Court prior to the proceedings, General Counsel Holly Hollman explains the BJC’S amicus brief, which the Court referred to.

View the BJC amicus brief Read the recap of oral arguments Read the BJC news release About the Religious Freedom Restoration Act

Podcasts about the cases

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Holly Hollman discusses the BJC’s friend-of-the-court brief


Brent Walker and Jennifer Hawks break down oral arguments

Frequently asked questions about the Zubik v. Burwell case

Zubik post-decision FAQ for web-1View a printable PDF of these questions

What is the Zubik v. Burwell case about, and what does the decision mean?
The U.S. Supreme Court consolidated seven cases brought by religious nonprofit organizations challenging the procedure they can use to opt out of the Affordable Care Act’s contraceptive mandate. The consolidated cases go by this name officially, and the various cases include religiously affiliated hospitals, schools, and other nonprofit charities (including one often mentioned in news coverage: Little Sisters of the Poor). These organizations claim that the accommodation procedure violates their rights under the Religious Freedom Restoration Act. In all seven cases, the circuit courts ruled that the accommodation was not a violation of their rights.

The Court’s decision encourages the parties in the case to find an acceptable compromise. If they are successful, the government will likely have to go through its rulemaking process to enact any compromise procedure. Depending on what happens in the circuit courts, these cases may return to the Supreme Court. Meanwhile, these nonprofits will not be penalized for not following the current accommodation procedure, and their employees will still have access to contraceptives.

In addition to sending these seven cases back to the lower courts, the Supreme Court returned similar cases from three other circuits back to their respective circuit courts. One of these additional circuits, the 8th Circuit, is the only one to have ruled in favor of the religious nonprofits.

What is the Religious Freedom Restoration Act?
Commonly known as RFRA, the federal Religious Freedom Restoration Act became law in 1993. It provides legal protection against government actions that interfere with the exercise of religion. Under RFRA, the government cannot substantially burden religious exercise unless the government can show that it is pursuing a “compelling governmental interest” in a manner that is the least restrictive on the person’s religious exercise.

What is the contraceptive mandate?
The contraceptive mandate is the requirement, under the Affordable Care Act (sometimes called “Obamacare”), that most employer-provided health insurance plans cover all 20 FDA-approved methods of contraception without any out-of-pocket costs to employees. Its purpose is to advance the ACA’s emphasis on no-cost preventive health care services.*

How does the contraceptive mandate apply to religious organizations?
Because birth control is an issue that sometimes involves deeply held religious opinions, especially regarding contraceptives that some believe act as abortifacients, the government created a two-tiered exemption for religious objectors who do not want to provide it. Houses of worship, denominational associations, and some entities that are closely related to them are automatically exempt from the mandate, though many choose to provide the coverage. Religiously affiliated nonprofit employers (some colleges, hospitals and charities) that oppose contraceptives have an exemption through a specified accommodation procedure.

What is the accommodation procedure provided to objecting nonprofits?
If a religiously affiliated nonprofit objects to the coverage, it must give written notice to either its insurance provider or the Department of Health and Human Services. The insurance company then contacts the employees to let them know they can receive the health benefit, but they cannot receive it through their objecting employer. The objecting employer does not have to contract, arrange, pay, or refer for the coverage that may or may not be chosen by the employee.

What’s the difference between the exemption and the accommodation?
In practice, very little. Both the exemption and accommodation relieve religious organizations that object to contraception coverage from having to provide it. Houses of worship and other entities covered by that exemption do not have to take any steps to claim the exemption, and their employees will not receive the coverage unless the organization chooses to include it in its health plan. Religiously affiliated entities who are not automatically exempt must provide written notice to obtain the accommodation. Employees of an accommodated entity will be entitled to contraception coverage through the organization’s secular insurance provider separate and apart from the employer’s health plan.

Didn’t the Supreme Court address this in the Hobby Lobby case?
In 2014, the U.S. Supreme Court decided that a closely held for-profit employer whose shareholders have religious objections to contraception should be entitled to the same accommodation procedure provided to religious nonprofits when it comes to their health care plan. The Court used the accommodation that these nonprofit employers are objecting to as a way to accommodate the Hobby Lobby shareholders’ beliefs and provide coverage for the employees.

Why do these nonprofits object to the current accommodation procedure?
The nonprofits make various arguments, all arising from a conflict between their opposition to contraception and the government interest in providing access to contraception. In general, the claims are based on a religious belief that the accommodation makes them complicit in the use of the objectionable contraception.

If a religious organization sincerely believes that its religious exercise is being burdened, shouldn’t the courts defer to their religious understandings?
RFRA provides broad protection for religious exercise based on a claimant’s sincere religious beliefs. While courts should defer to religious understandings of burden, that deference should not be absolute. Ultimately, RFRA is a legal standard and courts must determine if a burden is substantial. Otherwise, RFRA’s statutory design loses its meaning.

Here’s a simple example of how not all burdens on religious exercise are legally “substantial.” If someone gets a speeding ticket on the way to a worship service, he could claim that the speed limit burdens his religious exercise. The court would have to determine, however, whether enforcement of the speed limit is a substantial burden on the person’s exercise of religion.

Why did the BJC file a brief in this case, and what does it say?
The BJC filed a friend-of-the-court brief in this case in order to explain how the far-reaching arguments made by these nonprofits can endanger religious liberty. Written by University of Virginia School of Law professor Douglas Laycock, a leading religious liberty scholar, the brief makes clear the importance of RFRA’s standard in creating exemptions to policies that substantially burden religion. It also points out that the government must have the ability to enact exemptions that apply to specific situations. The regulations in these cases do not substantially burden the free exercise of religion.

The government provided a system that exempts religious nonprofit organizations from any obligation to contract, arrange, pay, or refer for contraception. Instead, coverage is provided through secular insurers, so that employees are not denied full and equal health benefits. While some frame this case as religious people versus an intrusive government, it is really about how the government can provide adequate protection for religious liberty without harming the rights of others. No employee is being coerced into contraception use, but the exemptions being challenged protect the right to free access to preventative health care – which includes contraception. Religious exemptions that relieve burdens on religious objectors while protecting government interests should be encouraged – not threatened with “all or nothing” demands.

The BJC files amicus briefs when its voice is needed to raise an important religious liberty principle in a case. As the leader of the coalition that fought for RFRA, the BJC continues to advocate for its use, allowing its carefully crafted language to balance competing claims that ensure religious liberty for all people.

*Insurance plans in this informational sheet are referred to as “employer-provided” and the people under the health care plans as “employees.” Some of the consolidated cases, however, involve schools that provide health insurance to students. While the ACA does not require colleges to provide health insurance to their students, if a college chooses to do so, the plan must comply with the ACA, including covering contraception.