The Supreme Court recently heard arguments in seven cases of religious nonprofit organizations that do not want their insurers to provide free contraception under the Affordable Care Act. The facts are complicated, hard for the press to report.
 
Basically, the law requires insurance plans to provide free contraception. But Catholic institutions object on grounds of conscience, and some Protestants object to providing emergency contraception, also on grounds of conscience.
 
The government has responded in two ways. Churches and their integrated auxiliaries—the religious organizations most closely integrated with the churches themselves—are exempt. What’s more, their insurance companies are exempt. Neither the employers nor their insurers have to provide contraception.
 
Other conscientious objectors are also exempt, but their secular insurance companies are not. If an employer notifies the government that it refuses for religious reasons to cover contraception, the government instructs the employer’s insurance company to provide free contraception separately, with segregated funds and segregated communications to employees, and to explain that the employer refuses to provide it. In order to send that instruction, the government has to get the insurer’s contact information from the objecting employer.
 
Many religious organizations accepted this solution, but some did not. Here’s why.
 
First, the remaining objectors say that they cannot in good conscience give the government contact information for their insurers. There is nothing confidential or religious about that information. But it is a step towards the insurer providing contraception.
 
Second, even without that, the objectors say that the secular insurance company will use the “infrastructure” of the religious employer’s insurance plan to deliver contraception. In practical terms, this appears to mean their insured employees’ names and addresses. More conceptually, the objectors say it is their insurance plan.
 
Many observers at the oral argument thought these cases were headed towards a four-four tie. But then the Court issued an order requesting supplemental briefs on the following question: What if the government puts the obligation on insurers from the beginning, so that no employer has to provide contact information or send any notice? What if, when an employer simply says to exclude contraception from its plan, the insurer’s separate obligation to provide contraception arises automatically? The Court could have devised this solution on its own, and probably did, but it was first suggested in a friend-of-the-court brief that I filed on behalf of the Baptist Joint Committee for Religious Liberty (see Resources).
 
This order for supplemental briefing suggests that someone on the Court thinks it may be a substantial burden on the exercise of religion to require the employer to send information to the government, but is disinclined to view use of the insurance plan “infrastructure” as a substantial burden. Justice Kennedy, the usual swing vote, is the obvious guess, but the prose and detail in the Court’s order are suggestive of Justice Breyer. Of course those guesses are highly speculative. But it took five votes to issue this order, and it would not make much sense to issue it unless a fifth vote were at least open to the possibility that the answers might matter.
 
The supplemental briefs are due on April 12. We will learn then whether the objecting religious organizations finally take yes for an answer, or if they continue to object even when they are not required to do anything at all beyond providing insurance that excludes the drugs to which they object. If the government agrees to recast its regulations to put all obligations directly on insurers, it may squeeze out a 5-3 win. But that is no sure thing.
 
A 4-4 tie would leave the current rules in effect in most of the country, but unenforceable in much of the Great Plains, where the regional court of appeals ruled in favor of the religious objectors. The Court would eventually take a new case to resolve the issue. But if the Senate refuses to consider any nominee to replace Justice Scalia until a new President is sworn in, that would likely mean no oral argument until fall 2017, and no decision until spring 2018. By then, someone else on the Court could have died or retired.
 
The Court’s questions at oral argument did not suggest much support for two arguments from the religious groups that actually endanger religious liberty. First, the religious groups said that only they can say what is a substantial burden on their exercise of religion; the courts must take their word for it. But that would give rise to even more extreme claims and inevitably discredit the cause of religious liberty.
 
Second, and even more dangerous, these religious groups said that because the government exempted the insurers of churches and their integrated auxiliaries, it is required to exempt the insurers of all other conscientious objectors as well. Otherwise, it discriminates between two groups of religious organizations.
 
This argument is a mortal threat to an essential set of protections for religious liberty. There are thousands of specific religious exemptions in American law. If legislators and administrative agencies cannot enact a narrow religious exemption without it being expanded to become an all-inclusive religious exemption, many of them will not enact any religious exemptions at all. And they will start repealing exemptions they have already enacted. Religious exemptions cannot discriminate between faiths or denominations, but they can exempt the core of religious exercise without exempting everybody.
 
Religious liberty is often endangered by government intransigence and judicial under enforcement. It can also be endangered by overreaching and exaggerated claims from its supporters.

Resources:
 
Denniston, Lyle. “The ACA Birth-Control Controversy, Made Simple.” SCOTUSblog, July 15, 2015, Commentary.
 
Laycock, Douglas. “Religious Liberty and the Culture Wars.” University of Illinois Law Review 839 (2014): 851-63.
 
The Little Sisters’ case in the Supreme Court will actually be known as Zubik v. Burwell, No. 14-1418. All the documents from the seven cases are available at http://www.scotusblog.com/case-files/cases/zubik-v-burwell/. The documents most relevant to this article include:
 
Order for Supplemental Briefing, March 29, 2016.
 
Transcript of Oral Argument, March 23, 2016.
 
Brief of Baptist Joint Committee for Religious Liberty, February 15, 2016.
 
Brief of Bishop David Zubik and others, January 4, 2016.
 
Brief of Little Sisters of the Poor and others, January 4, 2016.
 
Brief of Sylvia Burwell, Secretary of Health and Human Services, and others, February 2016.
 
These briefs are technical in places, but on the whole, they are reasonably accessible to non-lawyers.
 

 

Author, Douglas Laycock, (J.D., University of Chicago Law School) is Robert E. Scott Distinguished Professor of Law at the University of Virginia and Alice McKean Young Regents Chair in Law Emeritus at the University of Texas. A leading authority on the law of remedies and on the law of religious liberty, Laycock has testified before Congress and argued cases before the U.S. Supreme Court. He has published two volumes of a four-volume collection of his writings on religious liberty. He is vice president of the American Law Institute.

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