SCOTUS up angle1Written by Don Byrd

Below are some highlights from the transcript of today’s Supreme Court oral argument in the contraceptive mandate challenges consolidated as Zubik v. Burwell. (The Baptist Joint Committee’s Brent Walker spoke to reporters following the argument.)

First, a little context. The BJC filed a brief with the Court, which was referenced several times during the hearing. Written by law professor and religious liberty advocate Douglas Laycock, the brief emphasized two points:

1) Religious objectors who claim that a substantial burden to their religious free exercise entitles them to relief under the Religious Freedom Restoration Act (RFRA) should be accorded deference on the question of the substantial burden on their faith, but they are not entitled to absolute deference.

2) The plaintiffs’ view that because churches and other houses of worship are provided an outright exemption from the contraceptive mandate, that other religious organizations should be treated the same, is a danger to religious liberty because of the many laws that currently provide limited religious exemptions.

Here is an extended excerpt of the Court’s questioning of petitioners’ attorneys Noel Francisco and later (in rebuttal) Paul Clement on the second issue:

JUSTICE GINSBURG: Are you suggesting that once you have this category, the church, then any other organization, religiously-­oriented organization, has to come within that same category as the church itself? The government can’t treat the church as special and give it an exemption that it doesn’t give to religious-­oriented organizations?

MR. FRANCISCO: No, Your Honor, I’m not necessarily suggesting that. But in this case, when you look at what the government has, in fact, done in particular, when you look at what Congress has, in fact, done, that is, in fact, the line that Congress has drawn. Both in the Title VII exemption where churches, like the houses of worship and religious organizations like our clients get treated the same. Like in the tax exemption regime. Here the government’s entire line is drawn from the tax world where the line ­­where they ­ they define those who have to file informational tax returns ­­–

JUSTICE GINSBURG: Yes, the government could do that, but does it have to? That is, can the government say we are going to treat the church itself ultra protected? Religious-­oriented organizations are  protected, but not at that same level.

MR. FRANCISCO: Your Honor, no, I don’t think they can do that in the context of this regime. I don’t think the government can take the position that the Little Sisters of the Poor are any less at the core of a, quote-­unquote, “church” than a house of worship, where we have time ­­–

JUSTICE KENNEDY: The same with a university?

MR. FRANCISCO: I think with a university, yes, Your Honor, because, again, when you look at how Congress has drawn the lines, universities get the Title VII exemption from ­­ for religious hiring. Churches do. The Little Sisters ­ —

JUSTICE KENNEDY: Well, but then you’re answering really to the affirmative in — ­­ to Justice Ginsburg’s question. Once you give it to a — ­­ a church, you have to give it to any other religious organization. That’s ­­ that’s your position.

MR. FRANCISCO: Not quite, Your Honor. I think that the problem is that the government has to draw a definition that is coherent and that is rational. And I think the problem here is they’ve drawn a definition from the tax regime that doesn’t comply when you carry it over to this regime.

JUSTICE KAGAN: I thought there was a ­­very strong tradition in this country, which is that when it comes to religious exercises, churches are special, and that ­­ you know, we have said this most recently in Hosanna-­Tabor, but it’s a long line of cases which says that there’s something very special about churches themselves. And ­­ and if you’re saying that every time Congress gives an exemption to churches and synagogues and mosques, that they have to open that up to all religious people, then the effect of that is that Congress just decides not to give an exemption at all. And that’s why there are some people who are extremely strong RFRA supporters who have deserted this cause right here, Professor Laycock among them, because of the mortal danger that it poses to churches.

MR. FRANCISCO: And, Your Honor, just to be clear, I am not suggesting that whenever you give an exemption to churches, that exemption has to apply to all other religious organizations. What I am suggesting is that when the government has the same interest with respect to both religious and secular employees, the churches, the religious employers, the employees of small businesses, the employees of grandfathered plans, and the government furthers that interest with respect to all of those employees in many other ways ­­ whether it’s the Affordable Care Act Exchanges, whether Title X, whether it’s Medicare and Medicaid ­­at a minimum, the government needs to explain why all of those other ways are sufficient for all of those other employees . . .  ­­
…                                                                                                                                                                                   JUSTICE KAGAN: Here is the deal you would put in place, Mr. Francisco. You would be saying to Congress, Congress, next time you pass a law, don’t put in an exemption for churches; you’re going to get in real trouble doing that. Don’t write transition rules that will help people adjust to a new legal regime; you’re going to get in real trouble doing that. Don’t write exemptions for small businesses, even though there are very particular concerns that small businesses face; you’re going to get in trouble for that. Now, those are terrible incentives to give to a legislature, are they not? 

MR. FRANCISCO: No ­­ Your Honor, I think what it means is that when the government claims an interest, the overwhelming interest to force Petitioners ­­ organizations like Petitioners to violate their sincerely held religious beliefs, then yes, when it says we’re going to exempt some organizations for purely secular reasons, some organizations for political reasons, and other organizations for religious reasons, then it does have to [explain why the exemptions are not fine for us as well]. ­­                                                                                       

JUSTICE GINSBURG: But going back to that line­-drawing problem ­­– and that is in a brief that’s been mentioned several times, the Baptist Joint Committee –­­ our leading proponent of RFRA discusses this line-­drawing problem. Do you just say that’s wrong?

MR. CLEMENT: No, I would say that that gets me to the next point. But if I could just finish this point for one second. Their original justification for the line they drew, Justice Kennedy, was that the exempted organizations would be more likely to hire co-­religionists and, therefore, less likely to have employees who would use the products. My clients equally enjoy the Title VII exemption which gives them the right to hire co-­religionists so their original rationale applies equally to my clients. You have to draw a sensible line. Now as to the exemptions, I mean, I will respectfully disagree with Professor Laycock.

In questioning Donald Verrilli, representing the government, the Court turned more sharply to the issue of whether the religious accommodation poses a substantial burden on the plaintiffs’ religious exercise, triggering RFRA protections, and how to make that determination.

GENERAL VERRILLI:  . . .We think that it doesn’t constitute a substantial burden because the way that this accommodation is structured, although you’re quite right, it seeks from the perspective of the employee to ensure that the employee gets the protection that Congress designed, that from the perspective of the employer, that this is provided through a separate program.

JUSTICE KENNEDY: But you’re saying, don’t worry, religions, you’re not complicit. That’s what you’re saying?

GENERAL VERRILLI: No. We’re saying that the judgment about complicity is up to you, but that there is an objective limit that RFRA recognizes on the scope of what is a cognizable burden . . . 

JUSTICE SOTOMAYOR: General, can we go back to the substantial burden question? . . . When is it that government has to act to accommodate, and when doesn’t it have to act to accommodate? There is some amici that have suggested a line that at least to me helps draw some clarity to the cases, our cases, which is, if what your religious belief is asking the government to do is to change its behavior with respect ­­– its regulatory behavior with respect to others, then it can’t be a substantial burden, because we live in a pluralistic society in which government has to function. And hence, you’re a military objector. You can’t tell the government, no, you can’t draft someone else. You have to ­­you can’t spend your money on war. We don’t have to use you to promote the war. But if you want to use others to promote the war, you’re entitled to do that as government. Does this line make any sense to you?

GENERAL VERRILLI: Yes, Your Honor, that’s ­–

JUSTICE SOTOMAYOR: Because here, what the religious groups I understand are asking is the government not to use its regulatory power with third parties who don’t have a religious objection, and forcing a burden on the women who its trying to help, third parties that don’t have the same religious objection, and burdening them to do other things.

GENERAL VERRILLI: I think that is the essence of our position on substantial burden . . . 

CHIEF JUSTICE ROBERTS: This is ­not just a case of the government dealing with a third party based on the Petitioners’ objection. The objection is that the government is hijacking their process, their insurance company, their third-­party administrator that they have hired and set up to provide these services. I understand the distinction between yes, you can do what you want, but you can’t compel other people to take actions that are consistent with your religious beliefs. But that’s not what’s going on here. It is the relationship between the insurer that the Little Sisters have hired or the third­-party administrator with respect to other entities that is being used by the government to provide these services. It’s not just a third party that’s being compelled. They want ­­it’s not just that they want third parties to take certain action.

GENERAL VERRILLI: I would agree with you to this limited extent, Mr. Chief Justice, that that’s the context in which the government action occurs here, that the fact that the ­­– there is this relationship between Petitioners and their employees is the occasion for government acting. But there is two points that are critical, I think, and go to why we shouldn’t consider this to be a cognizable burden. And the first one is that what we are doing when we act here is trying to make an alternative arrangement that comes as close as we can to ensuring that the employees who may not share the Petitioner’s religious beliefs get what the law entitles them to while at the same time ensuring that the employer does not have any legal obligation to pay for the coverage, to provide the coverage in any way. I mean, I think that the practical features of this are critical. The employer cannot be charged for the co-­pay, even insurance ­­– insurance plan, self­-insured, either way, cannot be charged. The insurance company or third-­party administrator has got to use separate segregated funds. It’s got to provide separate segregated notices. In many instances, it provides a separate insurance card to the employees for this part of the coverage. So what ­­– so in that respect, it is an independent arrangement with third parties.

You can read the entire transcript here.

The Court will likely issue an opinion before the end of June.