by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
I wrote a few weeks ago about some surprising developments at the US Supreme Court in the consolidated group of cases known as Zubik v. Burwell. As I explained, the petitioners in Zubik are a group of religious organizations that have been fighting the Obama administration over the “contraceptive mandate” that it imposed on employers five years ago under the Affordable Care Act (ACA). The first surprise was that the Court had ordered the parties to submit supplemental briefs stating whether they could accept a hypothetical compromise proposed by the Court, and the second surprise was that both parties had replied that they could.
In yet another surprising development, on Tuesday a unanimous Court announced that, instead of deciding the case on its merits, it was vacating the judgments of the lower courts and sending the cases back for reconsideration. The Court explained its decision by saying:
Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, 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 … We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them. (Quotation marks and citations omitted.)
Many have hailed the ruling as a victory, not just for the petitioning religious organizations, but for religious freedom more generally. It may well be. However, like the rest of these recent developments, the decision itself is unusual, and its ultimate effect is unclear.
The Petitioners and Their Supporters Celebrated the Decision as a “Win”
The Beckett Fund for Religious Liberty represented many of the petitioners, including an order of nuns called the Little Sisters of the Poor and Houston Baptist and East Texas Baptist Universities. In a press release the Fund characterized the ruling as a “win” and said:
Today the U.S. Supreme Court … ruled that the government cannot fine the Little Sisters of the Poor. The Supreme Court vacated the lower court rulings against the Little Sisters, accepting the government’s admission that it could meet its goals of providing the free [contraceptives and sterilization] services to women without involving the Little Sisters or using their plan. The Court also ordered the lower Courts to help the government choose an alternative method of providing the services that does not require the participation of the Little Sisters….
“All we have ever wanted to do is serve the neediest among us as if they were Christ himself,” said Sister Loraine Marie Maguire, mother provincial for the Little Sisters of the Poor. “We look forward to serving the elderly poor for another 175 years to come.” …
The government’s lower court argument was that … there was no way to deliver [contraceptives and sterilization] services except for the path laid out in the mandate. But … the government admitted … that [it] did have other ways to deliver the services without using the Little Sister’s plan or forcing them to participate. These admissions changed the decision [from] whether the Little Sisters’ religious beliefs should trump government interests to simply requiring the government to [meet its] goals through one of the many options it now admitted were possible.
The Heritage Foundation described the ruling as a “big win” for religious organizations and said:
This is a victory, not only for the Little Sisters, but for all individuals and organizations who step outside the four walls of a house of worship to serve the poor, heal the sick, or educate the next generation.
The Federalist Society also called it a “win” adding:
The justices unanimously told the government they cannot fine or tax The Little Sisters for refusing to provide contraceptives to their employees, which will save the organization from having to shell out millions of dollars in fines to the IRS for its refusal.
The Left, However, Saw Things Differently
In an attempt to put a positive spin on the ruling, the President claimed to be pleased and noted, irrelevantly, that, “The practical effect is right now, that women will still continue to be able to get contraception if they are getting health insurance.” Other progressive reactions, however, were less sanguine. At Slate, Dahlia Lithwick complained:
This is the court punting in the most elegant way imaginable…. The real loser is … the high court, which is working extra hard to try to prove that it isn’t limping along, celebrating its own inability to resolve cases, for at least this term and the next one.
At the Atlantic Garrett Epps took a similar view suggesting that:
The Court’s … “decision” in Zubik v. Burwell … is the latest evidence of its slide toward paralysis.
And predicting that:
The issue will be back in some form [because] the Court’s order … does not resolve the true statutory issues.
Epps is probably right about that, but for now it seems to be a good result. Much better, in fact, than anyone would have expected given the current ideological split on the Court.