People For the American Way Foundation

Supreme Court Punts in Zubik Case – and Shows Again the Crucial Importance of a Fully-Staffed Supreme Court

The Supreme Court issued a brief unsigned opinion today in the Zubik case, and vacated the conflicting opinions on whether the Religious Freedom Restoration Act (RFRA) allows religious nonprofits to effectively take away Affordable Care Act-required contraceptive coverage from their employees. The result is to punt the issue away until the Court again has nine justices, reinforcing again why the Court must have a full complement of justices and why the Supreme Court is such a critical issue in the 2016 elections.

Before the Court in Zubik were a series of cases in which federal appeals courts had ruled that objections by religious colleges and other employers to contraceptive coverage had already been accommodated by the Administration by making clear that the coverage was to be provided by insurers and not involve any employer who expressed a religious objection, so that RFRA was not violated and coverage should continue. The more conservative justices on the Court, including Justice Kennedy, were nonetheless troubled by the claim that the religious employers were still involved in providing the coverage, at least by specifically having to provide notice to object to it. So the Court ordered supplemental briefing in the case on whether it was possible to continue to provide the coverage with no involvement by the employers, other than providing insurance that did not include contraceptive coverage.

In its opinion today, the Court vacated the decisions being considered in Zubik and directed that, on remand, the lower courts should give the government and the objecting employers the opportunity to try to resolve the issue, in light of what the Court characterized as the possibility, as expressed in the supplemental briefs, of ensuring that the coverage can be provided without involving the employers. If needed, the lower courts would then issue opinions on the issue, which could be reviewed by the Supreme Court. Interestingly, the Court also gave the same treatment to the single appellate court opinion that ruled in favor of religious employers and was not included in the Zubik case, vacating that decision as well to be reconsidered again if necessary. The Court specifically made clear that while this process is going forward, women covered by the insurance plans should “receive full and equal health coverage, including contraceptive coverage," and that the “Government may not impose taxes or penalties” on the religious employers for failing to provide the formal notice of their religious objection which they had complained about in their lawsuits. In other words, no harm should occur to any of the parties while the government and the employers try to work out the problem and litigate it in the lower courts if necessary. A separate concurrence by Justices Sotomayor and Ginsburg further emphasized that the decision does not resolve either way the substantive issues, including whether the religious employers do incur a “substantial burden” that triggers RFRA.

While both sides can therefore claim some temporary victory from the Court’s ruling, the clear loser is our American justice system. A crucial legal issue that clearly divides the justices on the Court concerning the application and meaning of RFRA and contraceptive rights remains unresolved. Despite the apparent optimism in the Court’s brief opinion, it seems unlikely that every  religious employer in the country will agree to any accommodation under which its employees will still get contraceptive coverage, so that the issue is very likely to remain unresolved and return to the Supreme Court again. Without nine justices on the Court, it seems clear that the Court will not be able to resolve the issue, just as it could not at present. That makes the issue of filling the current vacancy on the Court, and who will be the president that fills future vacancies on our closely divided Supreme Court, extremely crucial now and in November.