Supreme Court Gives Itself an Exemption from Deciding Zubik

Yesterday, the Supreme Court issued a bewildering non-decision in one of the year’s most important cases, Zubik v. Burwell. After granting cert in and consolidating seven cases, receiving at least seventy amicus briefs in addition to those filed by the parties, hearing oral argument, and requesting additional briefing, the Supreme Court has finally decided…. not to decide.SCOTUS

Zubik involves a challenge by nonprofit religious organizations to a requirement of the Affordable Care Act (ACA) that contraceptive coverage be included within most employee and student health insurance plans. The nonprofits argue that the ACA’s existing religious accommodation—which allows organizations to opt out of providing contraceptive coverage themselves, but ensures that this coverage is seamlessly provided by a health plans’ insurance company—itself violates the nonprofits’ religious rights under the Religious Freedom Restoration Act (RFRA). The plaintiffs lost nearly all of their challenges at the circuit court level, but SCOTUS’s unanimous order yesterday vacating those decisions and remanding the suits back down gives the nonprofits another chance to demand an even broader accommodation.

In declining to issue a substantive legal opinion, the Court stated that the parties should be “afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” It’s difficult to fathom what such an approach would look like at this point, but that’s hardly the worst part of the Court’s order. What is far more problematic is the absolute lack of guidance it provides to lower courts at a time when the scope and meaning of RFRA is hotly contested.

Not only do significant differences between the parties remain within the current dispute, but yet another RFRA challenge to the contraceptive mandate is currently being litigated at the district court level. This challenge was brought by an individual health care consumer who argues that participating in a health insurance plan that includes coverage for contraceptives violates his sincerely-held religious beliefs. Such a claim stretches RFRA’s protections far beyond their breaking point, yet the Supreme Court has utterly declined to provide an analysis that might guide the district court in adjudicating this and other RFRA claims.

In addition, the Court’s order ignores the basic structure of the RFRA test. The Act states that the federal government may not substantially burden the sincere exercise of religion unless it is the least restrictive means of furthering a compelling governmental interest. While the precise meaning of nearly every element of the RFRA test is under-theorized, the basic structure of the test is clear—no accommodation is necessary unless there is a substantial burden on sincere religious exercise. In defiance of this threshold test, the Court’s order essentially asks the government to agree to provide a “less restrictive” alternative to the nonprofits without clearly holding that their religious liberty has been burdened in the first instance.

In its opinion, the Court specifically notes that it “does not decide whether petitioners’ religious exercise has been substantially burdened.” Nevertheless, it suggests that the government’s procedures “could be modified” so as to be acceptable to the nonprofits. This subverts the RFRA test, and could encourage the government in this and future cases to provide religious organizations with exemptions that far exceed what is required by law, and that substantially harm third parties.

Apparently, the Zubik plaintiffs aren’t the only ones who want an exemption from their legal responsibilities. In its order, SCOTUS has exempted itself from its obligation to issue a substantive decision on the case before it. To be fair, the order was likely issued in order to avoid a four-four split by the Court. Thus the real blame may be laid on yet another exemption— Congress’s attempt to exempt itself from its obligation to hold a hearing for Supreme Court nominee Merrick Garland. Until there is a ninth justice on the court, we may have to prepare for a confounding year of Constitutional remands, punts, and ties.