The Supreme Court issued a unique order — but no decision — in a dispute between a group of Christian organizations and the Obama administration over the government’s handling of religious objections to its HHS mandate. Defendants argued that the mandate, which is part of the Affordable Care Act, forces them to be a party to the delivery of medical services that violate their beliefs.
The much-watched case, Zubik v. Burwell, was the key religious liberty case on the court’s docket this year. Its order, apparently the result of the inability of the short-handed court to reach a majority opinion, urges both parties and lower courts to seek compromise that would achieve common goals, but sets no precedent on the broader legal issues in question.
The order says that the parties should arrive at an arrangement that “accommodates petitioners’ religious exercise” while insuring that their employees will “receive full and equal health coverage” that will also provide the services covered by the mandate. In the event that the administration and the Christian groups cannot find common ground, each case will be directed back to the lower court that issued prior rulings.
The justices made clear that “the court expresses no view on the merits of the cases,” saying that the decision should in no way be taken to indicate a ruling on the religious objectors’ claim that the mandate imposes a “substantial burden” on their religious beliefs or other constitutional issues at hand.
Justice Sonia Sotomayor authored a separate document stressing that she joins the opinion only on the basis that lower courts will not interpret the order “as signals of where this Court stands” on any of the given questions.
Despite clear disclaimers, advocates for both sides were quick to claim a victory.
“From our point of view, this decision is a win for religious liberty. The government has admitted that it does not need a religious institution’s health plans to accomplish its goals,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor, one of the plaintiffs. His reference to the government’s admission concerns statements in additional documents that were submitted by both parties following oral arguments upon the request of the Court. It was an early sign that the Justices were seeking compromise in lieu of a decision.
Rienzi pointed to the fact that the order unanimously invalidates all lower court rulings against the Christian groups and suspends fines imposed by the government as signs of acknowledgment of the merits of his client’s argument.
Similar sentiments were heard from supporters of the government’s case.
“This sounds like a draw, but it isn’t exactly. Concealed in the Court’s oracular language is a tentative but important win for the government,” wrote Garett Epps, a legal scholar who has taken a critical position on the plaintiff’s arguments, in an article for The Atlantic.
He said that the order’s statement that health care coverage be provided “seamlessly” indicated that the religious organization’s insistence on entirely separate plans to cover the medical services covered by the HHS mandate would be unacceptable to the Court.
In the fallout of the landmark Hobby Lobby ruling, which allowed certain small businesses whose owners held objections to compliance with the health-care mandate to remain exempt, the administration made an accommodation for religious objectors to provide the services in question through a third party. However, several Christian organizations have refused to comply, arguing that the arrangement still forces them to compromise their religious beliefs.
The administration has maintained that the option does not make the groups a party to the delivery of services.
This approach in particular has alarmed many advocates of religious liberty, as it effectively let courts interpret the details of faith for litigants and was the focus of an amicus brief submitted by Rabbi Mitchell Rocklin, Rabbi Steven Pruzansky and Rabbi Dov Fischer.
Another brief from the National Jewish Commission on Law and Public Affairs (COLPA) raised concern over the government’s position that plaintiffs could not be considered religious institutions since they are not explicitly places of worship. The ruling leaves both issues unresolved.
“This decision is a positive development for the issues raised in the Rabbis’ brief because it wipes the lower courts’ harmful decisions off the books,” said attorney Howard Slugh, who prepared the brief on behalf of the Rabbis mentioned above. “It is likely that the Court will still — one day — have to reaffirm that religious adherents rather than government functionaries get to define religious adherents’ religious beliefs and practices.”
Rabbi Abba Cohen, Agudath Israel’s vice president for federal affairs and Washington bureau director, told Hamodia that while the ruling certainly left many important questions unresolved, the court’s approach of compromise is a positive step in and of itself.
“I think religious organizations have always favored finding a way to work out accommodation rather than going to court,” he said. “To the extent that the court is concerned with finding a way to accommodate [religious objectors], it is a good thing for religious liberty, but we’ll have to see what will really happen from here.”
It is unclear at this point whether direct negotiations between the government and objectors will yield a solution that will satisfy the needs of both sides, or whether cases will return to lower courts for new decisions in light of the justices’ instructions. A further split in rulings from appeals courts could potentially return the issue to the Supreme Court, but most likely not before the appointment of a new justice to fill the vacancy left by the death of Antonin Scalia.