Zubik v. Burwell: An Analysis
As part of a now somewhat established tradition of challenging the Affordable Care Act (ACA) since its passage into law in 2010, Zubik v. Burwell presents ever more complex issues about what constitutes religious “freedom,” as well as questions the federal government’s authority to become involved in the affairs of non-profit organizations. While the heart of the case rests on the interpretation of the Religious Freedom Restoration Act of 1993 and deals deeply in issues of rights, it’s role in the political trajectory of legal challenges to ACA mandates indicate that SCOTUS’s primary interest in taking the case rested more in clarifying RFRA’s relationship to the ACA. This paper will present the facts of the case, describe its legal background, assess the arguments presented by amici curiae briefs on the side of Burwell, as well as analyze the ways in which Zubik is highly involved in conflicts between the rights and freedoms of the government and those of individuals and small groups. It will conclude by examining the ways in which the Supreme Court’s decision is a reflection both of its tendency to function on very narrow grounds, as well as its somewhat unusual behavior following the death of Justice Antonin Scalia.
The Zubik case arose as a consolidation of eight different cases coming out of a variety of lower circuits (3rd, 5th, 10th, and DC). The issue presented by all eight of the consolidated cases was the belief on behalf of the petitioners that the Affordable Care Act’s mandate to provide contraceptive care violated their sincerely-held religious beliefs, and that the “opt-out” provision established after the Hobby Lobby ruling was not sufficient to prevent their rights from being substantially burdened. Decisions in the lower courts varied slightly from case to case, but by and large the lower courts ruled that the ACA mandates as applied to the non-profit religious groups were in fact in violation of RFRA. These decisions were reversed in the appellate courts.
In the Third Circuit, which included the Zubik and Geneva College cases, “the appellees urged that the accommodation violates RFRA because it forces them to ‘facilitate’ or ‘trigger’ the provision of insurance coverage for contraceptive services, which they oppose on religious grounds.” The Third Circuit brief further stated that appellees affiliated with the Catholic Church additionally objected on the basis that the application of the accommodation to Catholic nonprofit organizations divides the Catholic Church, because the Dioceses themselves are eligible for an actual exemption from the contraceptive mandate. The arguments by the non-profit groups were very similar across the appellate courts, with small variations such as the concern about “dividing the Catholic Church.” But the main issue maintained and brought forth in the consolidated SCOTUS case was related to the application of RFRA to these ACA-related cases. Almost all decisions in the appellate courts regarding this issue sided with the government, and claimed that the “opt-out” requirement was not a substantial burden, and did in fact employ the “least restrictive means” to achieve the government’s “compelling interest” of providing contraceptive care. This is with the exception of the Eighth Circuit Court, which was the only one to side with the non-profits. In their decisions, the lower courts primarily focused on an interpretation of RFRA, and in particular on the three aforementioned clauses: substantial burden, least restrictive means, and compelling interest.
It is certainly possible to discuss this case only in terms of the strict, narrow legal questions that frame it; however, it goes without saying that this case, like many SCOTUS cases, is also mired in a wealth of pre-existing social and political issues. Primary among these is the issue of rights: in particular, the way in which religious rights conflict with the right of the state to govern in a way that promotes the general welfare of society. This issue of rights can be examined both historically, as well as in comparison with what is considered the precursor for the Zubik case: the Hobby Lobby case.
The document at the heart of both of these litigations was the Religious Freedom and Restoration Act which, as previously explained, bars the government from imposing “substantial burden” on the exercise of religious beliefs, with allowances for such burdens if the policy or program is “the least restrictive means” that the government could use to achieve a “compelling government interest.” This language is both nuanced and flexible; it highlights the special need for judicial review in cases involving two sets of competing rights—an issue that exists in many parts of law (torts, environmental law, issues of privacy, etc.). In this instance, it is the job of the court to determine whether the violation of one groups’ rights (the petitioners) is acceptable in light of the specific legal permissions that the government has to make such violations. The petitioner’s rights are related to the exercise of their religion because they deem the use of contraception a violation of their core beliefs and values as Christians; the government has a compelling interest in providing birth control because of the strong evidence in support of family planning (amongst other things). Thus, the question at hand in Zubik was whether or not the “opt-out” paperwork acted as a “substantial burden” to the petitioners. The deeper question with regards to rights in this case has to do with the rights of the employers (the religious petitioners) versus the rights of their employees (in the case of the universities consolidated into the Zubik case, this would include students). If the court were to uphold the petitioner’s rights, to what extent would the rights of those depending on them for care be ignored in such a ruling? By refusing to participate in any form in the exchanges that would provide their employees with care, religious employers would essentially be denying care to the people depending on them for it—in a sense imposing their own beliefs on this group, and infringing on their rights. We will see how SCOTUS proposed to work around this issue later. In truth, the way in which the court chose to look at Zubik was not very focused on the issue of rights at all; rather, it was viewed as a sort of extension or answer to the ACA-related case that came before it, Burwell v. Hobby Lobby.
The Hobby Lobby case differed from Zubik in a few key ways. The first and primary difference was that Hobby Lobby applied to for-profit companies whose management had “closely held” religious beliefs, while the Zubik case involved non-profit religiously affiliated groups, who wished to be treated the same as houses of worship. Secondly, the “opt-out” exception contested in the Zubik case did not yet exist during the Hobby Lobby litigation. In fact, Hobby Lobby played a large part in making this accommodation a part of the ACA plan. The “opt out” paperwork (EBSA Form 700) was a solution to the more rights-based problem that existed in the Hobby Lobby case; it excused the closely held, for-profit companies from having to pay for their employee’s contraceptive care, but the care was still provided by a third party provider after the paperwork had been completed. In the Zubik case, however, religious groups are seeking entire exemption, which means that their employees (or in some cases, students) would not necessarily be guaranteed an avenue from which to obtain contraceptive care if they still desire it, despite the fact that they work with a group that objects to contraceptives on moral grounds.
A large part of the justiciability of the Zubik case rested on its differences from the Hobby Lobby case, which we have just discussed. In their petition to the Supreme Court, Zubik, et. al. claimed: “The Third Circuit’s decision contradicts this Court’s longstanding precedent, which precludes judicial second-guessing of adherents’ religious beliefs. Moreover…[it] contradicts this Court’s precedent and fuels confusion among the circuits regarding the proper tests for substantial burden and strict scrutiny under RFRA” (1-2). The petitioners also claimed that the government had a definite interest in differentiating between religious groups who were “exempt” versus those who were only “accommodated.” The language that appears in Zubik et. al.’s petition, as well as the language used in the court’s oral arguments indicate that their primary legal focus on the issue was in an analysis and application of RFRA in the very particular case of ACA mandates.
The court largely agreed that the issues presented by Zubik et. al. were different than those presented in earlier cases such as Hobby Lobby and thus warranted more tailored legal scrutiny that might provide a precedent establishing a well-defined relationship between RFRA and the ACA mandates. In their statement explaining why they accepted the case, SCOTUS noted that “the [appellate court’s] decision squarely conflicts with this Court’s decision in Hobby Lobby, which held that the Government substantially burdens religious exercise whenever it forces plaintiffs to ‘engage in conduct that seriously violates their religious beliefs’” and further that “the decision added to the growing confusion and division among the circuits over the proper way to conduct RFRA’s substantial-burden inquiry.” Thus, as is so often the case, SCOTUS took on Zubik in order to resolve conflict among the district courts and to address a few finely tuned legal and precedential questions—not to answer any big political questions about rights and religious freedom writ large.
The amici curiae (“friends of the court”) briefs delve into some of these legal issues more deeply, focusing particularly on what defines a burden. About seventy of the “friends of the court” briefs were vided by the Supreme Court, which were relatively equally divided between those penned on behalf of the petitioners and those written in defense of the government’s interests. In our presentation, we focused primarily on three main briefs, all of which were in support of the government. The first was by Professor Douglas Laycock, a leading scholar in the area of religious liberty, who discusses why it is important for the government to have clear lines defining what “substantial burden” is. Interestingly, Laycock had written in support of religious objectors in the Hobby Lobby case, but sided with the government in Zubik. He justifies his views by explaining that allowing all conscientious objectors to become exempt would actually harm rather than help religious groups by degrading the significance of the exemption itself. He claimed that the religious objectors cannot and should not try to control the way that the government regulates insurance companies.
The next two amici curiae briefs, from the Military Historians and Professor Elizabeth Sepper, focus more on the element of cost-shifting that naturally comes with exempting certain groups from otherwise mandated acts. The Military Historians argue that to maintain religious liberties, all institutions must respect the preexisting rules surrounding accommodation for conscientious objection. They draw upon the example of military service noting that, historically, evaders of the draft would always have to do something in the place of serving—that is, they were accommodated, but not completely exempted. The point of accommodations, the historians note, is to ensure that the party is still providing something useful to the state in exchange for not participating in the objectionable service. From the perspective of the historians, the Zubik case demanded an exemption from the accommodation, which has no precedence and should not be deemed acceptable. In a similar vein, Professor Sepper examines the ways in which other parties might be burdened if an “exemption to the accommodation” were granted. In her brief on behalf of the Church-State Scholars, she writes: “the total exemption Petitioners demand provides no mechanism through which the government might ensure replacement coverage…Instead, women who do not share the beliefs of their nonprofit religious employers or colleges would have to pay for or forgo contraceptives that their health plans would otherwise cover” (27). In this argument, Sepper claims that the religious objector’s demand for an exemption to the accommodation impermissibly imposes significant costs onto third parties in a way that other religious accommodations have not in the past and should not in the future.
Despite having weighed these issues in their oral discussions, the Supreme Court failed officially answer the legal questions raised by Zubik. In their final decision SCOTUS stated that, after reading the supplemental briefs requested of the parties, it was believed that “the parties on remand 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.’” In short, the case was abandoned by the Supreme Court and left for lower courts to make individual decisions that satisfy both parties. Because the case was vacated and remanded to lower courts, SCOTUS did not express any views on the merits of case or establish any new precedent regarding the issue. This being the case, it is unlikely that the decision will have much influence on future cases (primarily because of its lack of precedential value). The Zubik ruling is not interesting because of its logic or argumentation (it hasn’t got much of that)—rather; it is interesting for the very fact that it is a “non-decision.” The court’s decision not to decide is first and foremost a reflection of the current state of affairs, that is, the death of Justice Antonin Scalia and the resulting tendency towards a 4-4 split. It seems clear that SCOTUS’s abandonment of the Zubik case was at least in part motivated by a desire to avoid the embarrassment of a split decision, as well as to ensure that the lower court decisions were not all preserved just as they are. The Court’s aim in vacating Zubik was to guarantee that the interests of both parties be considered and somewhat satisfied on a case-by-case basis, without establishing a firm precedential decision. While a sign of the times, the Zubik decision is also a perhaps encouraging sign that SCOTUS is trying to maintain its role as “the most apolitical branch of government”—or at least the image of it.