Supreme Court Oral Argument Leaves a Question Mark Hanging Over Little Sisters

March 23, 2016

“My client would love to be a conscientious objector. The government insists they be a conscientious collaborator.”

That line, offered by attorney and former Solicitor General Paul Clement as he closed his argument for the Little Sisters today, perhaps best captures this saga of cases in one sentence.

Zubik v. Burwell, the case for which oral argument was held today, is consolidated with six other cases (including Little Sisters of the Poor) composed of dozens of plaintiffs. The ruling in this case stands to impact scores more of religiously-affiliated universities, organizations, and individuals who object to being forced by the HHS mandate to violate their consciences by providing contraceptive services that cause abortions. These challengers have brought claims under the Religious Freedom Restoration Act (RFRA), which, if they can show they have a sincere religious belief that has been substantially burdened, requires the government to show it has a compelling interest advanced by the HHS mandate and is pursuing that interest in the least restrictive way possible.

The argument heated up quickly, as Paul Clement, arguing for some of the religious challengers, was vigorously questioned by Justices Sotomayor, Ginsburg, and Kagan about how government could continue to function if religious actors were permitted to consistently object to regulatory schemes like the HHS mandate. Clement skillfully parried away their questions: “My clients do not object to objecting,” he observed, but they do have a problem with being forced to violate their religion by a process the government calls an accommodation. Just because the government “call[s] it an accommodation doesn’t mean its immune from RFRA analysis,” Clement noted.

Noel Francisco, arguing for some other challengers, honed in on the fact that churches were already exempted under the HHS mandate. The existence of other such exemptions and whether they showed that the government did not actually have a compelling interest in imposing the HHS mandate’s requirement on the Little Sisters was a recurring theme throughout the argument. If the government has such a compelling interest, why not exempt the Little Sisters and others as it has exempted churches and large corporations?

When Solicitor General Donald Verrilli arose to argue for the government, Justice Kennedy showed surprising quickness in probing him about whether the government concedes that the exercise of religion was substantially burdened in this case. Verrilli conceded the exercise was sincere, but not substantially burdened. Why not? In the government’s view, the religious organizations are provided with a way to extricate themselves since the government authorizes the insurer to provide coverage. The religious groups can send the government an “exempting” document, and the government then authorizes the coverage. But the government needs the exempting document to authorize the coverage! The exempting document triggers acts against which the religious organizations have the most profound of objections. Sounds like an “authorizing document” to me.

The existence of other exemptions under the HHS mandate (showing that the government does not clearly have a compelling interest) and availability of other coverage (showing that the government is not working through the least restrictive means) were recurring themes throughout the argument. The government did not make a strong showing on these issues. At one point, Verrilli was stuck arguing that other alternatives to coverage, like the exchanges, do not provide the same coverage that is provided through the religious challengers’ insurers. Thus, in the government’s view, there were no less restrictive alternatives. It was almost as if the government had to concede the ineffectiveness of Obamacare as part of its argument before the Court today.

Also of note today were several references by the justices and advocates to the views of Professor Doug Laycock on whether RFRA supports the claims in this case. Nevertheless, as Paul Clement noted in closing, when Professor Laycock’s view is accurately restated, it supports the religious claims here.

One of the heartening things about today was seeing Justice Kennedy show support for the idea that if a religious belief is sincere (in this case, if the challengers believe the law makes them complicit in evil) and if there is a significant financial penalty attached to not following that law, there clearly is a substantial burden on religion. Justice Alito most vigorously disputed Verrilli’s arguments from the bench this morning, while Chief Justice Roberts also consistently hammered the government’s arguments. The Chief aptly characterized the government as “hijacking” the religious organizations’ insurance agreements to do its bidding. Justice Kennedy also observed the government was trying to “hijack the plans.”

Justice Thomas, along with these three, are likely votes for the religious challengers. Justices Kagan, Sotomayor, and Ginsburg will likely rule for the government, but a glimmer of hope remains: Justice Sotomayor appeared sympathetic to religious freedom in the context of a military conscientious objector. Justice Breyer appeared to struggle with which way to rule; if he can find sympathy for the position of the Little Sisters, the Court will offer relief to them later this spring. If the result is 4-4, however, the lower court decisions (many of which are negative) will stand until the issue is taken up again by the Supreme Court. While an outright win at this point is ideal, either of those results would be preferable to five justices ruling against the challengers here.