On Monday the decision came down in Zubik v. Burwell, the latest incarnation of the campaign by the Religious Right against the Affordable Care Act and in particular its Contraceptive Mandate. Or, more correctly, the non-decision came down. The Supreme Court punted back to the Appeals Courts. Cancelling the current decisions, the courts were told to reconsider the cases in light of the supplemental briefing where, according to SCOTUS, both the government and the religious non-profits objecting to the accommodation granted agreed that it was possible to craft a system under which “contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from the petitioners.”
Setting aside the very strong questions as to whether the government and petitioners actually did come to this level of agreement, and the welcome news that, eventually, women who work for these religious non-profits will receive the zero-cost reproductive health care to which they are legally entitled, this is a very, very bad decision by the Court. As Justices Sotomayor and Ginsburg noted in concurrence, this “decision” actually decides nothing. It is not a ruling in any way of the merits of the case, and it is very important that the lower courts realize that. As the two Justices noted, “the Courts of Appeal remain free to reach the same conclusion,” goading the five (out of six) Circuit Courts that ruled the accommodation constitutional to do so again.
To realize quite why this is such a bad non-decision, we need to look at the Religious Freedom Restoration Act (RFRA), the law under which the non-profits claim a right to an exemption. RFRA requires a plaintiff to demonstrate two things to qualify for an exemption: it must show it has a sincere religious belief, and that this religious belief is substantially burdened by the government action. If those two things are shown, then the ball is in the government’s court. To avoid an exemption, the government must show that the action at stake furthers a compelling government interest, and that the action is the least restrictive means possible of reaching that goal. This is an incredibly high burden for the government to reach – the highest level of justification required in constitutional law. Laws which discriminate based on race can only be constitutional if they meet this standard, for example.
By sending these cases back from whence they came, SCOTUS avoided having to decide any of these factors. The first prong – the requirement to show a sincere religious belief – is never challenged (except for in prisoner cases). The government doesn’t like the PR implications of standing up in court and disputing the sincerity of the religious beliefs of groups like the Little Sisters of the Poor. There’s also a real question as to what kind of testing could be done without involving the government unconstitutionally in the determination of who and what is religion (though with the recent case regarding the Church of the Flying Spaghetti Monster in Nebraska, who knows). Yet these cases warrant a question as to sincerity. The University of Notre Dame, allegedly, was ready to comply with the requirements of the accommodation until told by a donor to join the lawsuit. In Hobby Lobby, the Greens, the stores’ owners who claimed religious opposition to forms of contraception they falsely believe to be abortifacients, invested millions of dollars from the Hobby Lobby retirement plan into corporations that manufactured abortion inducing drugs. Their sincerity is far from certain. But the government won’t challenge it, so the Court can’t decide it.
By sending this back to the lower courts to craft a new compromise, SCOTUS is essentially saying “see if you can do this in a way that is less restrictive.” And by so doing, they are missing a golden chance to decide the burning question of RFRA. What does it mean to place a “substantial burden” on religion? This non-decision means there are not five members of the highest court in the land who are willing to stand up and say that signing a piece of paper in order to qualify for an exemption to a law is not, in and of itself, a burden on religion. As CFI argued in its amicus brief in this case, there is no legal basis for thinking that notifying the government of one’s desire to take advantage of an opt out is burdensome. In order to obtain conscience objector status, an individual has to write a letter explaining his anti-war beliefs; a church wishing to use hallucinogenic tea as part of a worship service must still file for an exemption from drug laws. The idea that raising your hand and saying “please excuse me from this” is a burden on religion is specious and has no support in American jurisprudence.
Well, not quite no support. Justice Alito’s poisonous decision in Hobby Lobby gives credibility to the idea that, ridiculous though it may seem, Congress intended to define “substantial burden” in RFRA as “whatever level of burden a religious group claims to be substantial.” This is Alito’s solution – to stop the courts having to determine what is substantially burdensome to religious groups, we simply take the word of the religious group bringing the case on this. This stunning act of judicial activism, the elimination of a clause of a democratically enacted act, was unprecedented. Never before has the Supreme Court, or any other court, to the best of my knowledge, decided that the only people who can decide whether an element of a case has been proven are the plaintiffs themselves. In Zubik, the Court had a chance to redress Alito’s irresponsible act of religious privilege and pandering. It had a chance to stand up and say that while we will work to avoid unfairly and unnecessarily burdening religious practice in this country, we aren’t going to simply roll over and let religious groups define when they are burdened. The Court had the chance on Monday not only to defend the interests of hundreds of thousands of women working for these organizations, but also of the millions of Americans who don’t believe that waving the religion card should provide an automatic opt out from the responsibilities of civil society. And they flubbed that chance badly. They couldn’t even find five Justices willing to say that signing a damn piece of paper wasn’t a legally cognizable substantial burden. That scares the beejezus out of me for future cases.