Court seems tied in religious nonprofits case

WASHINGTON—The nuns in the Little Sisters of the Poor, who run nursing homes for the elderly poor, had been praying around the clock for their case when they arrived at the Supreme Court early Wednesday morning and sat down for breakfast in the court’s cafeteria. Two Catholic University of America law students, Jason Miller and Will Russell, had camped out in sleeping bags all night to get a seat in the arguments.

The nuns, the students, and plaintiffs from seven total cases came together today to hear arguments in their Supreme Court cases challenging Obamacare’s contraceptive and abortifacient mandate on behalf of religious nonprofit organizations. A Supreme Court ruling in favor of the government has the potential to significantly weaken protections under the Religious Freedom Restoration Act (RFRA), which is why even religious groups who don’t object to contraceptive and abortifacient drugs have filed on the nuns’ side. The nonprofit petitioners face millions of dollars in penalties if they do not comply with the mandate.

After the arguments in Zubik v. Burwell on Wednesday, the court seemed headed for a 4-4 tie, given Justice Anthony Kennedy’s strong sympathy for the religious objectors. A tie would be a sort of victory for the nonprofits because it would not set a national precedent against their conscience rights, but it would affirm the lower court rulings in which all the petitioners here lost.

The RFRA legal test of the mandate has three components: whether the mandate created a substantial burden on the petitioners’ religious exercise, then whether the government has a compelling interest (i.e., a good reason) for burdening them, then whether the current “accommodation” is the least restrictive means of accomplishing the government’s objective.

Paul Clement, in a sparkling performance arguing for the nuns, said if they had “just stuck to their knitting” instead of caring for the elderly poor they would have qualified for the complete exemption from the mandate that churches and their auxiliaries have. Noel Francisco, whose firm represented many of the Catholic plaintiffs against the mandate, also argued for 20 minutes. He mostly focused on the numerous other exemptions the healthcare law gave without exempting religious nonprofits.

An important moment of the arguments came at the beginning of U.S. Solicitor General Donald Verrilli Jr.’s 45-minute slot to defend the mandate.

“Do you concede that there’s a substantial burden?” asked Kennedy.

“We do not concede that there is a substantial burden,” Verrilli replied. “We concede that the religious belief is sincere.”

“Do you question their belief that they’re complicit in a wrong?” Kennedy pursued. Verrilli said no, the government did not question that belief.

“Well then that seems to me that there is a substantial burden,” Kennedy concluded. “And then the next question is whether there is an accommodation and whether that’s the least restrictive.”

The Kennedy-Roberts one-two punch of Verrilli continued, as they both described the government as “hijacking” the nonprofits’ health plans to provide contraceptives to their employees.

“You’re saying, ‘Don’t worry religions, you’re not complicit,’” Kennedy said.

Roberts said the government’s compelling interest is in women having preventive care, he argued, not in using the nuns’ plan to provide contraceptives.

Verrilli replied that if the government didn’t use the nuns’ plan, the government would have to “change the law” to provide alternatives. He said that would leave women with “jury-rigged” plans. Justice Samuel Alito suggested women could purchase fully subsidized insurance for contraceptives on the healthcare exchanges, which Verrilli did not think was a good idea.

“Is it because these exchanges are so unworkable, even with the help of a navigator?” Alito said slyly, drawing laughter in the room.

“Consider this, please, from the perspective of the woman employee,” Verrilli urged, describing the extra steps an employee would have to take to get separate contraceptive coverage. “Even these small barriers work as a sufficient disincentive.”

Verrilli described how employer healthcare plans are often a subsidy to an employee’s compensation, so it is important for employees to get benefits through that plan.

“That just underscores that the church plans here, religious organization plans here, are in effect, subsidizing the conduct that they deemed immoral,” Kennedy said.

“Having the government stand up there and defend for 45 minutes forcing nuns to provide coverage was helpful,” Christian Legal Society lawyer Kim Colby said outside after the arguments. “Least restrictive means killed them on Hobby Lobby. I think it’ll kill them here again.”

Oral arguments are not always indicative of a justice’s position; Justice Stephen Breyer especially likes to show sympathy to both sides in arguments even though he typically rules with the other liberals. Still, Breyer on Wednesday showed some sympathy to the religious objection.

Justices Sonia Sotomayor and Ruth Bader Ginsburg left no doubt of their opposition to the Little Sisters’ case. Justice Elena Kagan questioned aspects of the nonprofits’ arguments, but she wasn’t definitive about her position.

Clement closed with a memorable line: “My clients would love to be a conscientious objector, but the government insists that they be a conscientious collaborator. There is no such thing.”