Lawyers for religious colleges and the Obama administration accused each other of making unreasonable demands on Wednesday as the U.S. Supreme Court heard a challenge to federal rules aimed at ensuring access to contraception coverage.
The court, for its part, seemed divided on the question of which side needs to bend — the faith-based organizations that morally object to even tangential involvement with insurance coverage for contraception, or government officials who have refused to grant such groups the same sorts of exemptions given to other types of employers.
Many of the justices’ remarks focused on a knotty legal question — when the federal government should grant exemptions to the law for religious reasons. The court also grappled with the logistical challenges that would arise from trying to accommodate faith-based organizations’ objections to contraception while ensuring that it remains readily available.
Paul D. Clement, a lawyer representing several of the colleges and other religious organizations before the court, said his clients “face a dilemma” that should be seen as prohibited under the Religious Freedom Restoration Act, a 1993 federal law intended to deter the government from burdening people’s exercise of religion.
“They can adhere to their religious beliefs and pay millions of dollars in penalties,” Mr. Clement said, “or they can take steps that they believe to be religiously and morally objectionable, and that the government deems necessary, for them to provide contraception coverage through their health-care plans.”
The U.S. solicitor general, Donald B. Verrilli Jr., argued, however, that the federal government had made “a serious, thoughtful effort to respect” the religious beliefs of the organizations challenging its policy before the court. He accused the other side of demanding that the rights of employees who want contraceptive access be extinguished until Congress passes a new health law that provides it through “a separate, one-off, jerry-rigged” channel.
Prospects for Change
Argued before the court were seven separate cases, combined as Zubik v. Burwell, No. 14-1418, involving challenges to the federal government’s carrying out of the Affordable Care Act. Among the nonprofit organizations that brought the lawsuits were seven religious colleges.
Eight U.S. appellate courts have heard such challenges to the law, and seven of them have ruled in favor of the federal government.
In the wake of Justice Antonin Scalia’s death last month, the Supreme Court is evenly divided between liberals and conservatives. If its 4-to-4 ideological split translates into a tie in the Zubik cases — an outcome that appears quite possible based on remarks the justices made on Wednesday — the appellate-court decisions under review would remain intact.
The religious organizations that object to offering such coverage are not required to provide it through their own insurance plans, but they must declare their intent to opt out to their insurer, a third-party administrator, or the Department of Health and Human Services. The government then works directly with the religious organization’s insurance provider or plan administrator to offer the contraception coverage, which the organization does not subsidize in any way.
The religious organizations that have challenged the federal law object on moral grounds to the opt-out notification requirement, arguing that it still requires them to violate their religious beliefs. They have called for the federal government to establish some other mechanism for providing contraception that does not involve them in any way.
During oral arguments on Wednesday, the court’s conservative wing focused heavily on the question of whether the government should completely exempt faith-based groups, as it does with churches themselves.
When Solicitor General Verrilli said it would take a change in the law to create a new mechanism for providing such organizations’ employees with coverage, Chief Justice John G. Roberts Jr. replied, “Well, the way constitutional objections work is, you might have to change current law.” Justice Roberts agreed with the assertion by lawyers for the religious organizations that the current law and regulations, in effect, “hijack” their insurance plans.
Saving Souls
The two lawyers for the religious organizations were challenged by the court’s liberal wing over their argument that their faith-based objections should trump the government’s interest in providing access to preventive health care.
Speaking to Mr. Clement, Justice Elena Kagan argued that his theory of the case hinges on a religious objection as “the end-all and the be-all.”
Justice Sonia Sotomayor asked how the government would be able to continue to function if it accommodated every claim that one of its requirements burdened religious beliefs. “Every believer that’s ever come before us, including the people in the military,” has said “my soul will be damned in some way,” she said.
Justice Stephen G. Breyer cited several examples of categories of people who do not get accommodations when their religious beliefs are offended by government action, such as Quakers who object to the use of their tax money to finance wars, or people who object to laws that protect blasphemy as free speech.
On the other side of the court’s ideological divide, Justice Anthony M. Kennedy said the federal government had not offered a good rationale for why it denies religious organizations the same exemption it gives churches themselves.
Justice Kagan argued, however, that if the court forced the federal government to offer all religious people the same exemptions granted to churches, Congress would decide “not to give an exemption at all.”
Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.
