Symposium: Into the weeds

Over the next day or two, the blog is hosting an online symposium on Monday’s ruling in Zubik v. Burwell, the challenge by religious non-profits to the Affordable Care Act’s birth-control mandate.  Lyle Denniston analyzed the decision for this blog.

Chad Flanders is Associate Professor at Saint Louis University School of Law.

We’ll probably never know how exactly things would have turned out had Justice Antonin Scalia still been on the Court, but today’s opinion in Zubik v. Burwell certainly does look like a placeholder, a kicking-the-can-down-the-road, a punt. If anything, it’s kind of like a judge saying to the parties about to go to trial: “See if you can work it out yourselves. Let’s settle this, rather than litigate it.”

Except it’s not exactly like that, because the Court has already said and shown it’s (very) interested in what the settlement is, that it’s ready to take the case, that it will step in if any compromise at the appeals court level makes one (or both) of the parties upset. Remember that we’re not just talking a single case; we’re talking several cases, all over America, with different lawyers, different clients, and different and possibly competing interests. We’ll see this case again, I imagine.

How did we get here?   Contrary to what a majority of the courts of appeals seemed to think, Zubik was – and is – a hard case. If we don’t want to start telling plaintiffs when and how their religion has been substantially burdened (which Solicitor General Donald Verrilli strikingly seemed to not want to do at oral argument), then we have to answer the hard question of how compelling the government interest is, and figure out the much harder and technical issue of whether there’s another way the government could satisfy this interest without burdening the challengers’ exercise of religion. The Little Sisters et al. said that they were burdened, the Court and the government didn’t seem to want to second-guess this, and so we had to move on to the rest of the Religious Freedom Restoration Act (RFRA): compelling interest, least restrictive means.

And it is here that the Court started really getting into the weeds. The Court asked the parties in its rather strange and unprecedented order after oral argument basically: “would something like this compromise be good enough? Is it something you can both live with? What do you think of our idea?” When critics complain of judicial policymaking, they usually mean that the Court is imposing its values on America, rather than sticking to the interpretation of the law. But here we were on the threshold of almost literal judicial policymaking: the Court proposing a detailed plan, and seeing if it could get the votes to pass it.

The Court today stopped short of saying that the plan it suggested in its order was the one the parties had to adopt. It left it to the parties on remand to tweak and modify the proposal and in so doing “resolve any outstanding issues between them.” But make no mistake, the Court was telling the lower courts the broad outline any “approach going forward” could take. (Come to think of it, this was a lot like how President Barack Obama devised his health care plan in the first place – giving a broad mandate to Congress, which was left to fill in the details and to “resolve any outstanding issues.”)

It seems clear, based on the Court’s decision, where the new battle lines are going to be. First of all, the Court had to have implicitly decided that there was a burden in the consolidated cases before them. This is perhaps the big news in a case that seems largely to pass the buck. After all, if there wasn’t a burden, why go through all the hemming and hawing about finding a new compromise, one that doesn’t require any notice? Why not just come out and say that the Little Sisters weren’t burdened at all by having to formally ask to be accommodated, as nearly all of the courts of appeals had done? In other words, the Court today has at least taken a position that the Obama administration threatening to fine plaintiffs like the Little Sisters if they don’t submit a notice is a substantial burden on religious belief. So this argument, I think, is over for now – despite what the Court (and Justice Sonia Sotomayor in her concurrence) seems to say.  (Think how weird it would be if an appeals court that found no burden the first time around wrote the same exact opinion on remand and again found “no burden” again.)

The new argument will mostly be over how “independent” or “separate” the accommodation has to be. This is where concerns about governmental hijacking of existing plans will come in. Some religious non-profits, I am guessing, will not like the fact that the administration will run contraceptive coverage through their existing health plans. This, those non-profits will allege, still taints them, still makes them complicit in what they take to be the moral evil of contraception. And of course, on the other side, is whether a sufficiently separate policy could ever really satisfy the government’s compelling interest in women’s health – this is the point (made in Sotomayor’s concurrence) about coverage having to be “seamless” in order to be good enough.

If Zubik was hard, Zubik II will be even harder. The Court will have to make clear when, exactly, a plaintiff is burdened, and how the government’s compelling interest can be adequately satisfied by some alternate – and newly worked out – plan. By amazing luck, the Court didn’t have to address either of these issues in Burwell v. Hobby Lobby Stores, Inc. In Hobby Lobby, the Obama administration had already made the plan and it was less restrictive. Here, the parties below basically have to make the plan – and one or more of the parties won’t like it, even if an appeals court ultimately approves it.

And so the Supreme Court will be asked to review it, and to get even further into the weeds.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case. The author of this post, however, is not affiliated with the firm.]