Today’s argument in Zubik v. Burwell was very different than what we saw two years ago on Hobby Lobby. The focus was almost entirely on whether the “accommodation” offered to religious nonprofits constitutes a substantial burden on those employers’ religious free exercise. Indeed, much of the argument involved a dispute over how exactly the “accommodation” works and whom it burdens — not simply whether adequate alternatives were available.
But getting past these technicalities of instance regulations, the result looks to be the same as what we saw regarding for‐profit corporations: the progressive justices are in lockstep for the government, the conservatives support the religious‐liberty claimants, and Justice Kennedy is in the middle but almost certainly leaning towards the conservatives. Of course, after Justice Scalia’s passing, that suggests that the vote will be 4–4 — meaning an affirmance of conflicting lower‐court rulings and a Schroedinger’s mandate that lives on in some of the country but not the rest.
The Court could avoid this untenable result — as well as the messy casuistry and the culture‐war battle — by following the administrative‐law line suggested by Cato in our amicus brief. We argued that the Department of Health & Human Services simply lacked the authority to create law in this sensitive area. As Josh Blackman and I write in the current issue of The Weekly Standard:
Conveniently, there’s an alternate argument, based on the Hobby Lobby and King rulings, that could command a majority opinion: The agencies lack both the expertise and power to exempt some religious groups while forcing others—deemed “less” religious—to be complicit in what they consider sin. By rejecting this bureaucratic assertion of executive authority, Zubik can thus be resolved without further politically fraught haggling over RFRA.
In other words, if Congress had imposed this regime, that would’ve been one thing, but we cannot assume that the Congress that passed Obamacare — including especially the pro‐life Democrats whose votes were essential — delegated such awesome power to administrative agencies without saying so explicitly.
Alas, the Court didn’t seem at all interested in that nifty solution, and so, rather than releasing that impossible tie, what we’re likely to see is a setting of Zubik for reargument at a time when the Court gets its ninth justice. That means we’ll be doing this all again next year, when it really will be deja vu all over again.