Public attention may be focused on the next Supreme Court justice, but the eight current ones will be hearing yet another challenge to Obamacare. How the short-handed court decides, though, will impact millions of people affected by the new crop of “religious freedom” laws.
The Obamacare case, Zubik v. Burwell, brings to mind a 1993 quote from the late Justice Scalia that a particular issue was “like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Haven’t we been here before—twice, in fact, in cases challenging Obamacare’s individual mandate and subsidies for health exchanges?
This time, as in the landmark 2014 Hobby Lobby case, the putative issue is religion.
In the 2009 battle to pass the Affordable Care Act in Congress, religious organizations won the right to opt out of providing coverage for contraception to their employees. (In Hobby Lobby, some for-profit corporations won that right too). This week, a cluster of religious organizations (Zubik himself is the Catholic bishop of Pittsburgh) is trying to opt out of the opt out.
Their argument is that saying “no” means saying “yes.” By checking the “Exempt” box, or by writing a letter to the Department of Health and Human Services, these organizations say they’re enabling the government to pay for the coverage, and that they are thus complicit in providing it. True, they’re actually opting out, but by opting out, they’re enabling the government to opt in, which is the same as opting in themselves.
Sound like tortured logic? It is, which is why of the dozens of challenges filed by the right-wing activist group The Becket Fund, all but one has lost. That one, however, now means there’s a split among the federal circuits, and so the Supreme Court must weigh in.
This, incidentally, is the new normal for conservative activism: raise tens of millions of dollars from right-wing 1 percenters and then file so many lawsuits that one is bound to make it to the Supreme Court. In fact, Zubik is actually seven cases consolidated into one with hundreds of briefs from activist groups on all sides.
Meanwhile, the government—funded not by the 1 percent but by all of us—has to spend millions of our money to defend all these suits. The net result, other than a biblical waste of taxpayer money, is both to get to the Supreme Court and to intimidate the government into giving the Christian Right what it wants. What would Jesus do, indeed.
(Answer: “The very fact that you have lawsuits among you means you have already been defeated.” 1 Corinthians 6:7)
Despite the disproportionate losses in lower courts, Zubik may well end up 4-4, depending on Justices Kennedy and Roberts. That’s because it’s filed pursuant to the Religious Freedom Restoration Act, or RFRA, now the favorite weapon of the Christian Right to avoid having to comply with laws that protect gays, women, or victims of domestic abuse. (Georgia’s state legislature just passed a state RFRA last week.)
The reason RFRA is so popular is that it makes it almost impossible for the government to do anything that someone says interferes with their religion. In the Zubik case, the argument is that the government could have found a less restrictive means of ensuring access to contraception—for example, doling out the pill directly. That’s ridiculous, of course, but it might be “less restrictive” to religious organizations whose leaders want to sleep easy at night.
The problem is that when a claimant says “This is against my religion,” courts do not say “No, it doesn’t.” That’s the way it should be, of course; we don’t want our secular courts telling people what their religion does and doesn’t say.
But that shouldn’t extend to the laws of cause and effect. By the logic of the claimants in Zubik, a conscientious objector should have the right to stop an entire war, because if she doesn’t join the service, someone else will, and that would be on her conscience. That can’t be right. “No” can’t mean “Yes” just because someone else is going to step in.
Same thing with RFRA’s other legalistic term: whether an action “substantially burdens” religious exercise. That, too, should not be up to the aggrieved party to decide. If I can define what burden is substantial, then what’s the point of having the word there at all? I say that it’s “substantial” to pay for an insurance plan that one day someone else might use for something I disagree with, and presto, it is?
Admittedly, there are complicating details. For example, under the current rules, organizations have to tell the government about the insurance plan they offer so the government can get involved. Some have argued that it’s that feature that’s problematic. Of course, if that’s the only problem, the court could issue an extremely narrow ruling.
It seems more likely that Zubik will define the outer limit of the “religious exemptions” movement. Count on Justices Alito and Thomas to rule for the claimants and on Justices Breyer, Ginsberg, Sotomayor, and Kagan to rule against them. But as RFRAs proliferate across the country, the way the Chief Justice and Justice Kennedy vote will affect millions of people, well beyond the boundaries of these limited cases.
That’s because more than 100 anti-LGBT bills have been introduced in this year’s legislative session alone, and many of them bring up the same questions as Zubik. For example, does it ‘substantially burden’ the religious exercise of a family-run bed and breakfast if two women rent a room together? What about if it’s a huge hotel chain? What if the family is required to put out a sign saying “opposite-sex couples only”?
And then there are the unintended consequences. Already, at least one defendant in a domestic violence case has used religion as a defense. After all, the Bible says women must obey their husbands, and countless fundamentalist sects advocate corporal punishment for spouses and children. Does it “substantially burden” a person’s religious practice for the government to say no, you can’t follow the dictates of your religion and “discipline” your wife by beating her as God wants you to?
Such questions are a far cry from this week’s arguments on Obamacare and contraception, but they will be answered by them. That’s how Supreme Court cases often work—and why the justices who sit on the court are so important.