This past week, the United States Supreme Court heard oral arguments in the highly contentious case of Zubik v. Burwell, which addresses the extent to which religious institutions, such as the Little Sisters of the Poor, are subject to the Affordable Care Act’s contraceptive mandate. The issue here is not a new one, for just two years ago in Burwell v. Hobby Lobby, the Supreme Court correctly held, by a 5 to 4 vote, that a religiously motivated employer could not be required to underwrite contraceptive coverage under the ACA.

Both Hobby Lobby and Zubik are governed by the Religious Freedom Restoration Act (RFRA), a statute that provides a three-part test for the accommodations that the federal government must make before abridging claims of religious liberties. The first part of this test asks the claimant to identify a substantial burden under the regulation. Once that is done, the government has to “demonstrate” under the second part that its action is done in furtherance of a “compelling state interest,” for which it has chosen, under the third part, the “the least restrictive means” of implementation.

RFRA was a bipartisan bill passed with overwhelming support in 1993 because of the outcry over the Supreme Court’s decision in Employment Division v. Smith, in which a sharply divided Supreme Court held, through the late Justice Antonin Scalia, that any neutral regulation could not be challenged under the Free Exercise Clause because of its disparate impact on religious liberty. Smith held that criminalizing the use of peyote in religious ceremonies was permissible so long as it was also criminalized for recreational use, as a neutral law of general applicability. The break down in the bipartisan consensus behind RFRA is evident in Zubik.

To set the stage, the Department of Health and Human Services (HHS)—which oversees the regulations associated with the contraceptive mandate under the ACA—has supplied churches a total exemption from the contraceptive mandate. But it did not extend this exemption to other religious groups, universities, and hospitals, all of which are also treated as charitable institutions both in the common law and under the under section 501(c)(3) of the Internal Revenue Code. Under the HHS regulations, they need not supply the coverage themselves. Instead, they must sign forms that indicate that they will “opt out” from the system and authorize—either directly to the insurer or indirectly through the government—that their insurers or third-party administrators will supply that coverage to women “without cost-sharing” with the covered women. These religious organizations are also required to maintain continuing relationships with the government to see that the plan authorizations are property updated. As the Little Sisters made the point explicitly in their reply brief, they object to “the government’s insistence that they execute documents that the government itself deems necessary to its efforts to get contraceptive coverage to their employees.” They would have signed a true opt-out in a heartbeat.

The government concedes that the religious organizations in question believe that they are “complicit” in the commission of a religious wrong by supplying that information. At this point, the case should be over. Forcing people to choose between fidelity to their religious beliefs and serious fines and penalties has to count as a serious burden under RFRA. Nor is there any compelling reason to force them to supply services that are freely available elsewhere. Against this backdrop, Zubik should be an easy case. But judging from the claims that the four liberal justices advanced in oral argument, the case is likely to come out in a 4-4 tie, which keeps the question in limbo until a nine-member Supreme Court decides the matter conclusively.

Matters got off to a rocky start during the oral argument when Justice Sonia Sotomayor pressed Paul Clement, who represented the Little Sisters, with the odd example of conscientious objectors who, “if they registered as pacifists, that that [sic] would mean other people who have to serve in their lieu.” But this example is not analogous to the case at hand. The government has to increase its recruitment, whether or not a conscientious objector opts out of the program, and it most assuredly could do so without the objector’s authorization. But there is no way that the government can force the insurer or third-party administrator (without compensation no less) to provide contraceptives to a religious objector unless that authorization is obtained. No one thinks that religious institutions must authorize government military expenditures out of general revenues.

The confusion only deepened when Justice Elena Kagan pressed Clement with yet another odd point: “I do object to objecting because objecting will make it easier for the government to fill my slot.” How that could happen is left unexplained, and the obvious point of distinction—that making life easier for the government is the same as authorizing third persons to disburse funds for the benefit of a specific group of employees—is again overlooked. At this point, Justice Kagan is guilty of the indefinite referent “this” when she accuses Clement of a “theory of the case [that] says that everything depends on a person coming in saying this is against my religious, and that being the end-all and be-all.” But no, these organizations only wish to protect themselves, not set the course of national policy on health issues. Their own definitions of right and wrong conduct are entitled to great weight.

Justice Ruth Bader Ginsburg then compounded the confusion by making an oblique reference to the Supreme Court’s 1986 decision in Bowen v. Roy. That case held that the United States did not infringe upon the free exercise of religion of Native American parents when it required them to give the Social Security number for any child applicant for benefits under the Aid to Families with Dependent Children. They claimed that providing the number would violate their “recently developed” Native American beliefs. But the decisive concern in Bowen was the obvious fraud risk from giving AFDC benefits to persons with idiosyncratic personal beliefs. A concern over fraud by the Little Sisters of the Poor was nowhere mentioned in the oral argument in Zubik.

The fourth of the liberal justices, Stephen Breyer, then weighed in with a despairing account of how difficult it is to resolve cases under the tripartite test of RFRA, which was intended to reverse Smith. He asks us to “think of a religious person who's not a hermit or a monk [and] is a member of society, [and] he does have to accept all kinds of things that are just terrible for him. Think of the Quakers, the Quakers who object to Vietnam.”

So, he asked, what is the line needed to decide this case. But there is an answer that squarely favors the religious objectors. The Quaker cannot refuse to pay taxes that go to support wars, even if they regard all wars as unjust. Any decision on whether to enter into a war is necessarily a collective decision that has to bind all if it is to bind any. It is often said that the government has the right to coerce individuals in order to supply them with collective goods from which they all benefit equally. But that optimistic statement of government ignores the many agonizing collective decisions from which some people benefit and others do not. Given the indivisibility of the choice, the correct response is to call for collective deliberation before making a decision that binds all winners and losers afterwards. There is no way that the Quaker can block the country’s entry into war or refuse to pay taxes to support the general government, anymore than the neoconservative can refuse to pay taxes when President Obama refuses to engage the use of ground troops in Syria or Iraq, and instead expends foreign policy resources in Cuba.

The issue in Zubik is not over collective goods; it is over individual contraceptive services to female employees. The best case scenario is that the government stays out of these decisions altogether. Indeed, the Supreme Case has the problem in its lap only because the ACA has unwisely collectivized these matters. But once made collective, it is no more proper to place the cost of caring for a given group of individuals on the religious organizations that are opposed to these particular expenditures than it would be to force the Quakers to pay extra sums to finance some war effort. In both cases, the proper response is to use general revenues to pay for these expenditures, raised from objectors and non-objectors alike.

During his remarks, the Solicitor General echoed the comments of Justice Sotomayor by insisting that making “seamless” coverage available to the female employees of these nonexempt organizations was a “compelling state interest.” Yet the claim falls flat, for how can it be essential that these employees receive that coverage, even though millions of women in grandfathered plans or small businesses do not. In all of these cases, the goods and services in question are supplied in a highly competitive marketplace, in which individual choices are possible. In principle, the only time that the government should compel firms to supply services against their will is when they are, like common carriers and public utilities, the sole suppliers of goods or services. In this particular case, moreover, even if it were thought that these, and only these women, were entitled to subsidized contraceptive coverage, there is no reason why they must receive that coverage solely from a defendant who is steadfastly opposed to it.

To avoid that conclusion, Justices Kagan and Sotomayor both insisted that “churches” were special and they could receive an exemption that is denied to other religious institutions. But the RFRA does not speak about churches. It does, however, speak about substantial burdens on the exercise of religious liberties. It is therefore wholly inappropriate to insist on a set of distinctions that may be appropriate under a rational basis standard, where transitional rules and ad hoc small business exemptions are par for the course. But when the statutory standard speaks of a compelling state interest, these refinements are simply out of place when general revenues can cover these costs.

In essence, the government’s case breaks down at both ends. The state has no compelling interest in supplying contraceptive care to women, and, even if it did, it has absolutely no compelling interest in forcing the insurer of these religious organizations to pay for that subsidized coverage. The expense should fall on the public purse if such payments are held to be in the public interest. Administrative convenience is no justification for overriding the requirements under the RFRA. Indeed, it is only because of the terrible precedent in Smith that this state of affairs cannot be addressed under the Free Exercise clause where it surely belongs. But this case shows just how difficult it has become to protect religious liberty from overweening state power.

overlay image