by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law
On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.
Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.
The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.
It would be an astonishing—and unprecedented—extension of the Court’s religious accommodation jurisprudence for the Court to say that even having to assert the religious belief substantially burdens religion. After all, it is inherent in any religious exemption or accommodation that it divides those entitled to the accommodation (they are religious and would otherwise be burdened by the law or regulation) from those who are not (those who are not religious, or whose religion is not burdened by the law at issue). Surely the government does not ask too much when it asks the claimant to certify that it is, in fact, religious and objects to compliance with the law. Otherwise, why would it be asking for an accommodation?
In fact, the accommodation the government provides to nonprofits who object to providing contraceptive coverage to their employees was cited by the Hobby Lobby majority opinion as the “less restrictive means” of achieving the compelling interest served by the ACA. The very fact that this less restrictive means was available, the Court said, was reason enough to strike down the requirements imposed on for-profit corporations in Hobby Lobby. Among the fascinating aspects of Zubik will be watching how some, if not all, the members of the Hobby Lobby majority go about explaining how the same accommodation they said the government should have made available to Hobby Lobby is now inadequate as an accommodation for nonprofits claiming the same objection to providing contraceptive coverage.
Nothing less is at stake in this case than the fragile constitutional balance the Court has maintained for decades between religious accommodation and the rights of others not to be forced to bear the burden of the accommodation. We live in an era in which government employees are claiming that their religious beliefs are so sacrosanct that they should be exempt from having to perform their job issuing marriage licenses, even though this burdens or denies the fundamental rights of couples to marry. It has never been more important that the Court reinforce the principle that religious accommodations may not go so far as to place burdens on the rights of others. Hobby Lobby was a dangerous departure from the Court’s tradition. Zubik is something far worse: an invitation to theocracy the Court must reject.