It is, of course, great news that a unanimous Supreme Court vacated lower court decisions that would have allowed the federal government to use the insurance plans of some religious organizations to advance its purpose of disseminating free contraceptives. This despite the organizations’ objection that requiring them to participate in the scheme was inconsistent with their religious belief.
So the court’s decision means the groups will not have to pay the crippling fines for failing to comply with the government’s demands. This is good.
Still, there are reasons for some misgivings.
To review, the basic legal question in the case is whether the government regulations applied against the Little Sisters of the Poor and other groups violated the federal Religious Freedom Restoration Act. That law provides that when the government’s actions create a substantial burden on religious practice, the government has to show that the burden is justified by a compelling government interest and that the government has chosen the “least restrictive means” of advancing that interest.
In other words, in the case, the religious groups would have to show that their religious exercise is burdened by the requirement that they initiate the process of providing contraceptives to their employees. If they succeed, the government would then have to show that it had a compelling interest in increasing access to contraceptives (as an aside, has there been a dearth of birth control use lately?) and that there was no other way to accomplish that goal that would avoid the religious liberty violation.
In its decision, the Supreme Court declined to decide any of these legal questions. To be sure, it nullified the lower court decisions on these points, but all of these questions can be raised again.
This procedure was brought on by the court’s somewhat novel approach to resolving the dispute without deciding the legal issues. After the government and the religious organizations had made their submissions to the court, the court raised, on its own, an alternative regulation and asked the parties to hypothetically respond whether the court’s approach would avoid the problems with the case.
Here’s where the misgivings arise:
- Shouldn’t the creation of substantive legal rules come from the legislature? Or, at least if, as here, the legislature is unwilling and wants to punt that responsibility to the agencies, to those with that specific governing role?
- Since, the government conceded that the court’s hypothetical would have worked and the religious groups accepted it, wouldn’t that fact alone have established that there was a less restrictive way of accomplishing the government’s aim and thus have established that there was likely a violation of RFRA in the government’s broader approach?
- Isn’t the court’s role to apply existing law to specific disputes, rather than to create new law?
- Is it the court’s role to snatch victory from the jaws of defeat for the administration?
- Relatedly, should the court take on the role of becoming a legal adviser to the government, proposing ways it can make its regulations comply with existing law?
- Are court decisions unnecessarily impacted by political realities that ought to be excluded from its considerations?
In the supplemental briefing, the parties did agree (though the government only grudgingly) that the court’s hypothetical regulation would work as a compromise. So now, as the Supreme Court has sent the cases back to the lower courts, the case could presumably settle out to the satisfaction of everyone.
The only sticking point is the government’s willingness to cooperate. Because the court did not decide the legal issues, the government could theoretically start making its same arguments all over again. Hopefully, the government will cooperate and the dispute will be resolved. Given how doggedly it has pursued this litigation despite the exceedingly low stakes for the government (since it has been free with exemptions to the mandate for other employers), we can be excused for worrying.
But even in the scenario when the specific conflict is resolved, nagging worries about the shifting role of the courts will remain.