‘Zubik v. Burwell’: Where Do We Go From Here?

On May 16, the U.S. Supreme Court — in an unsigned, unanimous opinion in the case Zubik v. Burwell — rejected the Obama administration’s attack on the Little Sisters of the Poor and other religious groups and refused to rule on the merits of the various appeals concerning the Department of Human Services’ “contraceptive mandate.”

Instead, the court vacated the rulings of four federal circuit courts that had decided against the religious groups and sent the cases back to the various appeals courts to continue the proceedings. The case, thus, ends a cramped reading of religious freedom in four federal circuits, and its decision exposes a central weakness of the government’s case: that the mandate was the only way to achieve its objective of providing contraceptive care.

Although not the full victory religious-liberty advocates were hoping for, it is a sound rejection of the government’s position and a judicial reminder that the American tradition of accommodating people of various beliefs still remains. Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, who represented the plaintiffs in Zubik, said of the case, “The court has accepted the government’s concession that it could deliver these services without the Little Sisters. The court has eliminated all of the wrong decisions from the lower courts and protected the Little Sisters from government fines.”

Significantly, although the Supreme Court did not rule on the merits of the underlying cases, the decision relieves the Little Sisters and other religious organizations from the crippling fines imposed by the Affordable Care Act for those employers who do provide for contraceptive coverage in their health insurance. That may just be temporary, however. Although the court seemed to signal in its opinion that a compromise could be worked out, each of the cases will proceed independently. And there is a chance, if the government wishes to continue to press its case against the Little Sisters, that the sisters will once again be faced with paying those fines.

The case had been closely watched as a referendum on the government’s attempt to force religious institutions to violate their strongly held religious beliefs. The Supreme Court had previously ruled in the Hobby Lobby case that closely held private corporations could assert religious objections to the mandate.

Religious-liberty advocates hoping for a reaffirmation of the Hobby Lobby case in the context of religious organizations were disappointed, and questions remain about the long-term future of religious liberty. Especially with the death of Justice Antonin Scalia earlier this year, a decision on the merits in favor of religious liberty in these cases was uncertain, so to have no ruling against the Little Sisters is a good thing.

However, what is less clear is whether the Supreme Court’s decision is a rejection of the government’s far-reaching claims that vague notions of “health” could override both statutory and constitutional language protecting religious freedom, as well as the American tradition of tolerance.

The core problem with the government’s position is that it treats religion only as what one does within a church building, or within one’s own mind. Christians, like other believers, are enjoined to live their faith through action, both personal and in the community; otherwise, religiously-inspired action can be overcome by any interest the government thinks at that moment is important, a view which leaves religious liberty in jeopardy.

The notion that “religious exercise” must include things like starting charities, schools, hospitals or, indeed, businesses, is foreign to the secular mind. Further, some legal scholars have asked whether religious belief is different from any other kind of belief, or why we should “tolerate” religious belief at all.

Seen in that light, the decision was incomplete. The Supreme Court, after agreeing to hear the case, took the unprecedented step of asking for additional briefings from the parties on proposed solutions. This was an implicit rejection of the government’s view that the mandate could only operate in one way, without regard for sincere religious objections.

Some lower courts had found the government’s arguments unpersuasive and held that the mandate was not the “least restrictive” means of achieving the government’s goals, which is one part of the legal standard. Among other things, the ACA already exempts certain religious institutions, as well as millions of people employed by programs that were grandfathered in and did not need to comply with the mandate. However, these four appellate circuits had been persuaded by the government’s arguments and now must revisit them, should the cases proceed. But because the Supreme Court did not suggest how it would rule on the merits, these appellate courts may very well decide the same way a second time.

Having receiving the briefs, the Supreme Court’s order stated the parties agreed that an option permitting contraceptive coverage while also protecting religious beliefs is feasible. This means that the “accommodation” the government was imposing, which the Little Sisters and others objected to, must be changed and new arrangements made.

Justices Sonia Sotomayor and Ruth Bader Ginsburg wrote separately, concurring to state that the opinion allows the parties and lower courts to reconsider their arguments. Although they stressed that the court had not decided whether the Little Sisters’ religious freedom had been substantially burdened by the mandate, lower courts would be free to do so if the government cannot develop alternatives with the religious groups.

These justices, at least, suggested that even now the government could assert policy goals that could trump religious exercise.

This decision appears to be an embarrassment to the government, since it is now forced to acknowledge what everyone knew all along: The mandate and the false “accommodation” were not respectful of religious liberty, and the arguments it was pressing in the lower courts were disingenuous at best. Rather, it seems that the campaign against the Little Sisters was driven by the need for a secular state to control those who believe differently, and from not a little religious bigotry.

The protection of religious freedom, however, remains paramount. Since the government did not receive an adverse ruling on the substantive claims, it may still try, in this or other areas, to erode constitutional protections. In a case called Hosanna-Tabor, the government tried to interfere in religious schools’ hiring decisions; in the Zubik cases, the government argued health needs trumped religious exercise.

The threat to freedom of religion remains very real. But for now, Zubik is good news. As these cases move back to the lower courts, perhaps the government will, hopefully, be more chastened in its attack on religious liberty and will work toward a true accommodation. The court’s decision should give the government pause that simply asserting “health care” is not enough to surmount the long national tradition of religious liberty protected, even if only indirectly, by Zubik.

Gerald J. Russello is a lawyer and editor of

The University Bookman (KirkCenter.org).