Why I Miss Scalia: SCOTUS Punts on Religious Freedom

Is it the habits? The crosses? What is it about the Little Sisters of the Poor that seems to have the power to cloud the mind of the Supreme Court? If you substituted any other word for “contraception” in the now endless series of challenges to the Obama administration’s contraceptive mandate, the outcome of the latest ruling would be unimaginable.

The Supreme Court yesterday refused to rule in the absence of Justice Scalia on the constitutionality of what has emerged as the most high-profile religious freedom case of our time and threw it back to the lower courts for some as yet unspecified “compromise” to what has been an endlessly compromised accommodation.

That in itself would be bad enough, but the outcome was actually far worse. In throwing the decision back to the lower courts, the Supreme Court voided the decisions of the lower courts—seven of whom had found that the mandate didn’t violate the religious freedom of the objectors. By all that is holy and right, if seven of the eight courts found the accommodation acceptable, shouldn’t you just go with that? Doesn’t that indicate that the overwhelming majority of your peers found no violation of religious freedom in keeping with generally agreed-upon definitions of such?

In a unanimous three-page brief, the court said it was convinced that it is “feasible” for contraceptive coverage to be “provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”

The court basically instructed the Obama administration and those claiming religious objections to go back to the table and negotiate a way to “arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.”

Mark Rienzi, senior counsel for the Becket Fund, called the ruling a “game changer” and a “huge win for the Little Sisters” and he’s right. The courts are agreeing with their basic contention that any notification of the insurer by the plaintiffs that they don’t intend to provide contraception is in fact a violation of their religious liberty. It also ruled that the government can’t fine the Little Sisters and other petitioners for not complying with the mandate, which means in theory no matter what the outcome they can just refuse to play ball.

While the court seems to have ruled out the option of a separate contraceptive plan, a fact reinforced in a concurring opinion by Justices Ginsberg and Sotomayor, it doesn’t offer any hint as to what magical means the Department of Health and Human Services will deploy to learn which plans aren’t offering contraceptive coverage and whom to contact to let them know their insurer will cover contraception anyway.

It seems to envision some form of the “compromise” it suggested in its equally bizarre request for additional briefs after the initial hearing. Under this compromise, the plaintiffs would contract for a plan that didn’t provide contraceptive coverage in the first place, which suggests that the Little Sisters and other religious objectors would have to void their existing plans and re-contract with their insurers for new plans that were identical in every aspect, except when offered the option of including contraceptive coverage they would simply decline to include said coverage.

In the understatement of the century, the court acknowledges that “there may still be areas of disagreement between the parties on issues of implementation” and any compromise may well end up back in court. This has always been about “implementation,” the Little Sisters and other plantiffs using paperwork as an excuse to claim religious liberty exemptions. If it were so easy to find a compromise on “implementation” don’t you think the Obama administration would have done so by now?

It’s hard to think of any other issue other than women’s reproductive health where the Supreme Court would be so deferential and willing to punt. In fact, it announces proudly in the brief that it “expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened.”

Nothing to rule on here, certainly not the biggest constitutional question of our time: what exactly constitutes religious liberty and violations to it? As Garrett Epps notes in The Atlantic:

The dispute is an important one, not only for the thousands of employees who work for religious hospitals, service agencies, and charities, but for the very notion of “free exercise” of religion in the post-Hobby Lobby world. The challengers seemed on track to punch a large hole in the government’s power to enact all kinds of federal social, economic, and welfare programs.

It’s as if in Brown v. Board of Ed the Supreme Court had recommended that Oliver Brown and the Topeka Board of Education just go home and work out a compromise to the whole segregation thing. Kind of makes me miss Scalia; at least we knew where he stood.