Symposium: The future of accommodation

Richard W. Garnett is Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame. He signed an amicus brief of constitutional law scholars in support of the petitioners in Zubik v. Burwell.

What just happened? It has been nearly five years since the Department of Health and Human Services announced an “interim final rule” requiring that contraceptives approved by the Food and Drug Administration be included, without cost sharing, in most employees’ health plans. That rule provided an indefensibly narrow religious exemption, one that was effectively limited to houses of worship and did not cover most religious universities, schools, social-service agencies, outreach ministries, or health-care providers. This ungenerous overreach prompted protests across the political spectrum. Years later, the short and strange per curiam opinion in Zubik v. Burwell is, among other things, a consequence of this misguided and unnecessary first step.

In the meantime, there have been a variety of adjustments to the boundaries of the exemption, to the mandate’s reach and mechanisms, and to the government’s arguments and litigating positions. There have been dozens of decisions dealing with the implications for the contraception-coverage mandate of the Religious Freedom Restoration Act, including, of course, the Supreme Court’s Burwell v. Hobby Lobby Stores case. There have been a presidential election, a change in control of the United States Senate, two bizarre and seemingly endless party primaries, and the death of Justice Antonin Scalia. And, to mention just a few of the developments that provide the larger framework for understanding the Court’s decision, we have seen the invalidation of the federal Defense of Marriage Act, the constitutionalization of a right to same-sex marriage, raging controversies and corporate boycotts surrounding state-level religious-freedom proposals and enactments, disputes about wedding cakes and wedding photographers, county clerks refusing to issue marriage licenses, and “Dear Colleague” letters addressing gender identity and school restrooms.

Although a variety of commentators have called for an end to, or for moving beyond, the so-called “culture wars” – and others have declared them over and won – they appear to be as hot as ever. Is the Court’s per curiam ruling in Zubik v. Burwell, which is being characterized by many as a carefully crafted invitation to compromise, likely to cool things off? For those who (correctly, I believe) regard the administration – with its strange insistence that a community of nuns who take vows of poverty and care for the elderly poor must serve as a vehicle for delivering free contraception to their employees – as having aggressively and unlawfully overreached, the result can be seen as a (unanimous) win. To those who (mistakenly, I think) regard the religious institutions challenging the mandate as intransigent, overly scrupulous, or even insincere, it might instead be framed, and downplayed, as simply a pause in the action, until the confirmation of a new Justice empowers a new majority to begin the eagerly anticipated business of undoing Hobby Lobby (and many other supposed errors).

With respect to the decision itself, a few things are clear: First, the rulings against the religious-freedom claimants by the United States Court of Appeals for the Third, Fifth, Tenth, and D.C. Circuits have been vacated. This means, among other things, that these courts’ cramped readings and misapplications of the Religious Freedom Restoration Act are not the law and are not guides to the act’s meaning or authority for diminishing the protections it provides in other contexts.

Yes, those same and other courts might well return to their mistakes. They might, for example, extend unwarranted deference to the government’s assertions about “compelling interests” and the least-restrictive ways of accomplishing them or engage in ungenerous second-guessing of religious claimants’ descriptions of the burdens imposed by government action on their religious exercise – but, one can always hope, they might not. They might embrace the unsound theory, advocated by several prominent legal scholars, that the First Amendment’s Establishment Clause rules out accommodations that allegedly harm third parties by depriving them of what the government has, in violation of the act, mandated religious institutions provide – but, one can always hope, they might not.

The Court in Zubik insists that it “expresses no view on the merits of the case,” either on the religious claimants’ substantial-burden arguments or on the government’s compelling-interest claims. Justices Sonia Sotomayor and Ruth Bader Ginsburg wrote separately to underscore the Court’s silence and to warn lower courts against combing the ruling for “signals of where this Court stands.” These Justices then immediately “signal[led]” where at least they stand, and elevated the government’s current litigating position to the status of law, stating that women are “guaranteed seamless preventative-care coverage under the Affordable Care Act.” What’s more, they – but, interestingly, not the other two Hobby Lobby dissenters – highlighted the fact (and, perhaps, invited the outcome) that “the Courts of Appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.”

The per curiam opinion issues a different invitation, I think: Given both sides’ clarifications and admissions, the Court is providing an opportunity to do what a majority of its current members evidently think is possible, namely, to “accommodate[] 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.’” The concurring Justices’ admonition about signal-reading notwithstanding, it could be that Justices Elena Kagan and Stephen Breyer would not respond favorably were the government cynically to wait for the confirmation of Scalia’s replacement and in the meantime to refuse to do what it has, in the Court’s view, admitted is “feasible” – that is, provide the coverage in a way that does not infringe the religious claimants’ exercise of religion. Yes, the Court expressed no views on the merits of the religious claimants’ Religious Freedom Restoration Act claims. Still, its disposition is in keeping with the act’s animating values and the humane policy it reflects, namely, that because religious freedom is a fundamental human right, those whose religious exercise is burdened by generally applicable laws should, if and to the extent possible, be accommodated.

Regardless of what happens in the ongoing contraception-coverage saga, though, there are more than a few troubling signs that this policy of accommodation and the commitments it reflects are falling out of favor and even being squarely rejected. More and more, the enterprise of accommodation of religion, which is so crucial to the creation and maintenance of civic friendship in a diverse political community, is linked in the public mind and in political arguments with reactionary and even “bigoted” resistance to or reservations about the ongoing and dramatic shifts in attitudes and laws regarding sexuality, family, marriage, and identity. Increasingly, commentators’ emphasis seems to be shifting from the invaluable work that religious civil-society institutions do to the ways in which their norms and practices differ from those of the liberal state. There is decreasing appreciation among scholars and officials for religious organizations’ freedom-enhancing role and the good of pluralism and increasing worry that these organizations’ distinctiveness might, in some cases, complicate the state’s ambitions or undermine its goals. In some quarters, there is more fear that the accommodation of religion will somehow endorse or involve an insult to a third party’s sense of dignity than there is that state action will violate the right to religious freedom that human dignity demands.

To quote the symposium contribution of my friends and colleagues Nelson Tebbe, Micah Schwartzman, and Richard Schragger, it is a “demand of justice” that political authorities in diverse and sometimes disagreeing communities avoid, to the extent their obligations to promote and protect the common good allow it, burdening religious exercise or violating religious conscience. We should hope that, going forward, this demand will be heard and heeded. There is no denying, though, that to the extent the right to religious freedom is regarded as a luxury good, a license to do wrong, or as special pleading by the culture war’s losers, it is increasingly vulnerable. This should concern us all, because believers and nonbelievers alike benefit from a legal and cultural commitment to religious freedom and have a stake in the legal regime that respects and protects it.

[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.]