Zubik v. Burwell Orals

Liberals with their pluralism and conservatives with their support of religion should get behind the basic concept of reasonable opt-outs of generally-applicable laws. But when RFRA is gamed like this, it destroys the broad support for RFRA and imperils its continued existence.

The blog that argued this had some good things to say about the latest contraceptive mandate case oral argument (good play by play), including explaining why Alito/Roberts tried to say the government had alternatives simply not available under ACA.  Others also pointed out the problems there.  Marty Lederman continued his epic coverage at Balkanization (in Hobby Lobby, he had something like twenty posts; as here, not short ones either).

In my view, the basic idea here is that contraceptives are important preventive care [compelling state interest], protected as part of guaranteed coverage in ACA. There are exemptions for such religious institutions ("churches" is an imperfect summary) but other religious groups like a religious college are given accommodations. They notify the government they have  a religious objection and the government separately works out with the insurance company (or third party administrator -- ML's posts show how the weeds here are myriad) to provide the coverage. This is important since a "seamless" one stop shopping employee based system is the whole point. Along with the limits set forth in ACA and other laws (the S.G. gave a litany there), this accommodation is (using the lingo) the "least restrictive means."

The groups complain for two basic reasons. The one most emotionally salient is that the government is trying to "hijack" their plans (poor nuns!) to promote things (including in their view "abortion" aka IUDs etc.) against their religious beliefs.  They are forced to be "complicit." But, THEY alone aren't covered here -- they wish to hire employees who do not share their views as well as in some cases colleges with students and so forth.  Merely paying them salary (insurance is a form of compensation here) will provide some "complicity." The connection (here their insurance company separately giving benefits)  is weak enough for most courts and others to challenge the "substantial burden" they need to show for RFRA to kick in.

Early in the argument of the government, Justice Kennedy basically said that he thought the sincere belief that the accommodation violated their beliefs here met the test.  This seems to take the word "substantial" out of the equation, especially given the limited connection -- the tax fine they have to pay cannot do the trick. There is going to be some indirect connection (like salary that is used for abortions) which a person or group will have to handle or suffer civil or even criminal consequences.  Use of words like "collaborators" (where Paul Clement ended up) like we are treating them like those that helped the Nazis is just over the top. 

Anyway, and it looked like Kennedy accepted the accommodation for this reason in Hobby Lobby, even going past that first step, the compelling state interest here warrants this limited means to advance it even then. Such is the reality of society -- even if something burdens a religious belief (such as vaccination requirements), there will be neutral laws that are legitimate.  As covered in that link, even Prof. Laycock, a strong RFRA supporter accepts that this also goes to line-drawing as to the second matter.  The government for purposes of religious accommodation can place special rules for churches without similarly broad exemptions for religious people and groups generally. This is particularly the case when dealing with employees who are not members of the religions in question. If employees like some janitor at a religious run soup kitchen is going to be burdened, as Kagan suggested, who is to say the fair path would not to have less (after all, putting aside ministerial exemptions, these are constitutionally optional) exemptions across the board? 

In the view of some, the government -- so hard to believe given how the other side tars them as tyrants, I know -- is bending over backwards too much as is.  It repeatedly, at times pushed by the courts, tried to find a middle ground provide exemptions and accommodations.  Not surprisingly, some are still not satisfied, especially those who despise ACA or simply do not want to in any way be involved in the ideologically laden subject of birth control.  The principle goes further -- see the "religious liberty" not to serve gay people -- leading me to continually believe that the net result will be selective concern, since this level of micromanagement simply cannot be upheld to apply to every religious dissenter.  Establishment problem, especially when it harms third parties.

Prof. Laycock covers the "conservatives" in the opening quote though he has joined with religious liberals at times too.  This suggests the overlap present though the quote, reflecting how it is often expressed, suggests there is an ideological divide here. That is, liberals are not just concerned with providing women with health benefits or with gays not being denied equal treatment at courthouses or bakeries.  S.G. Verilli, who I think did a good job here again, ended on the right note there. The government is dealing with a diverse society with a range of faiths and provided a fair solution that balanced all the sides.  There isn't going to be some perfect solution here though it would help if some justices knew what they were talking about.

Again, it might have helped if the women (again, the principle applies broadly, and in some other case, men might have their health insurance choices burdened) had an advocate directly voicing their interests.  We have one side and then the other who is balancing everything. I will end on a point that I have noted in the past -- the "pluralism" on the liberal side includes religious pluralism.  Alito in the stun gun case noted how the right to use one was in part a matter of conscience, since some morally are opposed to using a more dangerous arm.  Same here -- use of birth control to avoid unwanted pregnancies is a matter of morality for many people.  Some speak of abstinence, which is unrealistic anyway, but many think sex is an important morally compelled way to bond with a partner.  This eases things there, putting aside that individual autonomy itself is for many an important matter of conscience expressed in their religious beliefs.

The law in various ways advances the interests of religious liberty and I fear that the discussion here does not fully focus upon how BOTH SIDES have such interests at stake. Not merely in a negative fashion of resisting burdens from those with beliefs different from one's own.  No.  ACA also helps employees exercise their own religious beliefs as suggested by Sotomayor (again strong in oral argument) when she noted birth control can reduce abortions.  A general benefit, but for many also a basic matter of conscience.