Bench Memos

Law & the Courts

Guide to Zubik/Little Sisters Merits Briefs—Part 1

“This case is not nearly as complicated as the government would like it to be. Indeed, once the deceptive labels and diversionary tactics are cleared away, the only things that matter are beyond dispute.”

So opens the summary of argument in the outstanding merits brief filed yesterday by the Little Sisters of the Poor and various other religious nonprofits who are challenging the legality of the so-called “accommodation” to the HHS contraceptive mandate. The Little Sisters brief, submitted by former Solicitor General Paul D. Clement, systematically dismantles the Obama administration’s flimsy arguments. So does the separate (and also excellent) merits brief filed by Bishop David A. Zubik and other Catholic entities. (Why two separate briefs? The Supreme Court granted seven separate certiorari petitions, and the many petitioners sorted themselves into two groups for briefing purposes. The two sets of petitioners do not have any significant differences on the legal issues.)

In a series of posts, I will provide a selective guide to the arguments made by the religious nonprofits. Here I set forth the remainder of the Little Sisters’ summary of argument (emphasis in original):

The government is threatening petitioners with crippling penalties unless they take affirmative acts that the government itself deems sufficient to put them into compliance with a mandate that violates their concededly sincere religious beliefs. The government has truly exempted—not merely “accommodated”—countless other employers from that same mandate, some for reasons as trifling as administrative convenience, and others because even HHS recognizes that its mandate violates sincerely held religious beliefs. Yet the government refuses to do the same for petitioners, notwithstanding their concededly sincere religious objections. If that does not violate RFRA, then it is hard to see what does.

The government’s contrary argument collapses under its own weight. The government claims that it has “exempted” petitioners from the contraceptive mandate, but that is demonstrably false. The government has granted true exemptions from the mandate, and they look nothing like what it demands of petitioners. Truly exempt organizations do not need to comply with the mandate at all; they need not execute or deliver paperwork empowering anyone to use their plan infrastructure to provide contraceptive coverage, nor even notify the government of their desire for an exemption. They do not face any penalties, and the government is not trying to use their plan infrastructure to provide contraceptive coverage. These organizations are truly exempt; petitioners plainly are not.

Nor can HHS accurately label its regulatory mechanism for compliance a simple “opt out.” If all the government wanted from petitioners were to know that they want to opt out of the contraceptive mandate, then this litigation would have ended the day it began. The problem is that the government wants something more, and always has: It wants petitioners to take affirmative steps and file the paperwork necessary to get contraceptive coverage to their employees through the plan infrastructure that petitioners created and maintain. If, and only if, they do so will petitioners be deemed in compliance with the contraceptive mandate. In other words, the government wants petitioners to do precisely what their sincere religious beliefs forbid—and it is threatening them with draconian penalties unless they do so. It is the same mandate enforced by the same penalties as in Hobby Lobby, and it is a classic substantial burden on religious exercise.

The government’s refusal to acknowledge as much is nothing more than a forbidden attempt to second-guess petitioners’ sincere religious beliefs that the actions the government has demanded of them would constitute sin. Indeed, if the government were really correct that its regulatory scheme imposes no burden on religious employers at all, then the true exemption for houses of worship could be eliminated tomorrow. That the government itself seems to recognize that such a result would be untenable utterly defeats its efforts to resist the conclusion that its regulatory scheme substantially burdens religious exercise.

The government fares no better with its efforts to demonstrate that forcing petitioners to comply with the contraceptive mandate furthers a compelling interest and is the least restrictive means of doing so. Indeed, the government cannot satisfy either prong of RFRA’s strict scrutiny test. If its interests were truly compelling, the government would not exempt the employers of tens of millions of employees from the mandate for mere administrative convenience. Moreover, there is simply no excuse for granting a true exemption to houses of worship and their integrated auxiliaries, yet denying one to religious organizations that share the exact same religious objections. HHS claims that this discrimination is intended to reflect a religious employer’s propensity to hire co-religionists. But there is no coherent justification for HHS to exempt one group but not the other when Congress has permitted both groups to limit their hiring to co-religionists through statutory exemptions to Title VII and other laws.

Nor is there any excuse for insisting that the only way to get contraceptive coverage to petitioners’ employees is through petitioners’ own plan infrastructure when the government already has in place alternative means for getting coverage to countless other individuals that require no involvement whatsoever from employers or their plans. Indeed, the government has invested billions of dollars in creating exchanges for the express purpose of making it easy to obtain qualifying insurance when it is not available through an employer. The government cannot explain why those exchanges suffice to advance its goal of getting contraceptive coverage to the tens of millions of people who may not get it from their exempt employers or are not employed at all, yet are not good enough when it comes to the few thousand employees who work for petitioners.

In short, the government has at its fingertips ready means of advancing its goals without enlisting petitioners in its efforts to get free contraceptives to their employees, and so, under RFRA, it must use them.