Little Sisters Win as John Roberts Again Balks at Calling Balls and Strikes

The Supreme Court issued a short, unanimous opinion in the contraceptive-mandate cases known as Zubik v. Burwell. There’s plenty of punditry out there for you to read so I’ll just offer three thoughts:

1. This was the biggest punt in Supreme Court history.

The Court abdicated its duty to say what the law is in favor of wiping the slate clean and telling the lower courts to facilitate a settlement between the parties. This is a cop-out. If the justices were hopelessly deadlocked 4-4 regarding the legal issue presented in the case – whether there was a way for the government to achieve its free-contraceptives-for-all goal in a way less-burdensome on religious employers – then they should’ve held the case for reargument at such a time as there’s a ninth justice to provide the tie-breaking vote.

2. The challengers win.

Although the opinion goes out of its way to state that the Court takes no position on the questions of whether (a) the contraceptive mandate poses a “substantial burden” on religious free exercise, (b) the government’s interest was compelling, and (c) the current regulations are the least-restrictive means of achieving that interest, it’s clear that the justices think that the government and nonprofit challengers are close enough in their legal positions that they can just “work it out.” In other words, after an unusual round of supplemental briefing wherein the Court asked the parties to speculate on what kinds of regulations might avoid involving religious employers in what they consider to be sinful behavior, the justices think there may well be a workable solution: simply have the employers object and let the government handle the rest (dealing with insurers and otherwise). Even Justices Sotomayor and Ginsburg, who concurred specially to protest (too much?) that lower courts should be free to continue ruling for the government, essentially accepted the “I object” solution so long as the resulting insurance/contraceptive coverage is “seamless.” 

If that’s correct, then the Court has essentially conceded that the challengers should have won their claim under the Religious Freedom Restoration Act – wherein, as the Hobby Lobby case showed two years ago, the government loses if there’s a way it can achieve its goal in a way that imposes less of a burden on the religious rights of the objecting parties. So really, the end result, assuming the lower courts don’t engage in a bout of judicial disobedience (not a slam-dunk assumption given how some courts have treated the Second Amendment in the wake of Supreme Court rulings in that regard) should be the same as if the Court, with Justice Scalia, had ruled 5-4 for the Little Sisters et al.

3. The legal precedent doesn’t matter.

RFRA is an unusual statute in that it’s meant to be applied case-by-case, so a ruling in favor of peyote-smokers says nothing about how judges should rule regarding prison beards – or objectors to contraceptive mandates. Contra the progressive alarmists in the wake of Hobby Lobby, a successful RFRA claim regarding one aspect of Obamacare implementation doesn’t mean that left-handed lesbians now have to sit in the back of the bus (or however the tired parade of horribles went). So even though the Court declined to adopt my argument (or any other) in the case, it doesn’t mean that our liberties are diminished in future or that the government can exceed its lawful powers in some future case.

In sum, the wily chief justice persuaded his colleagues to go in for a non-judicial non-decision. I may like the practical result here, but this isn’t law.