Thoughts on the Supreme Court case Zubik v. Burwell

By District of Columbia Bar

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By Kathryn Alfisi

On May 17 the U.S. Supreme Court unanimously agreed to vacate the judgments in Zubik v. Burwell and remanded the high-profile case to lower courts for further consideration.  

One of the most closely watched cases of the 2015-16 term, Zubik is the latest (the Supreme Court ruled on Burwell v. Hobby Lobby in 2014) battle between religious liberty and the Affordable Care Act’s contraceptive mandate. Zubik is a consolidated case for seven legal challenges that involve religious nonprofit corporations objecting to the government’s accommodation to the mandate.     

The D.C. Bar asked Gregory Lipper, senior ligitation counsel, Americans United for Separation of Church and State, and Iiya Shapiro, senior fellow in Constitutional Studies at the Cato Institute, for their opinions on the Supreme Court’s actions in Zubik v. Burwell.

Iiya Shapiro, senior fellow in Constitutional Studies at the Cato Institute, editor-in-chief of the Cato Supreme Court Review:

It was surprising. I thought that the court was hopelessly divided and would hold the case for next term whenever there’s a ninth justice. To return it to the lower courts with a 4-4 decision would mean that the mandate would be upheld in parts of the country and not in others, which would be really unworkable. That’s what I was expecting and I think that is what most people were expecting.

It seems like what this result is doing is hinting that there’s some sort of compromise to be worked out. Effectively it’s the same result that would have been the case had there been a 5-4 decision in favor of the challengers. If the lower courts facilitate a compromise whereby the nonprofit group raises an objection and the government takes it from there, then that’s the same thing as conceding that the government’s current accommodation was not the least burdensome way of accomplishing it’s goal under the Religious Freedom Restoration Act (RIFRA). This is a less controversial and lower profile way of achieving that same result and getting the entire court on board with it.

We’ll have to wait and see how things work out. It’s hard to imagine the government agreeing to compromises in some courts but not in others. I expect that the government’s position will be unified across all of the circuits, as will the challengers’ position. The conventional wisdom, to the extent that one can sense it already, is that there will be a compromise worked out in the end so that the Supreme Court won’t see this case again.

Greg Lipper, senior litigation counsel at Americans United for Separation of Church and State:

I thought it was possible that we’d get something like this. If the court was split but there was a vacancy that needed to be filled it could have just held the case over to be reargued next term. The problem is that there is no reasonable prospect of there being a ninth justice next term. What the court did was basically stall for time. The case will be sent back down to the lower courts, which will take several months to a year, and eventually it will come back to the Supreme Court hopefully by the time there is a ninth justice.

I think the court really did not want another four to four split in a very high profile case, partly because it’s not a good thing to have different rules in different circuits.

However, I think the problem with what they’ve done is that the women who have been in limbo for several years are going to continue to be in limbo.

Now all of the lower court decisions have been vacated, so we’re starting from scratch. These courts have a lot of discretion in how they can go about dealing with this case. For one thing, the courts can send parties to mediation or strongly encourage them to go to mediation. If you think there’s a prospect of an agreement, which I don’t, meditation can be a very effective thing. I, for one, am not entirely convinced that the lower courts are going to reach an agreement that has eluded the parties for the last four years.