This past week, the Supreme Court heard oral arguments in the case of Zubik v. Burwell, a case that will determine whether or not nonprofit organizations with ties to religious groups have the right to exclude contraception in the health care plans they provide for their employees. This same issue was at the center of the 2014 Hobby Lobby case, which found that Hobby Lobby, a private business, was not subject to the Affordable Care Act mandate to provide contraception because of the Religious Freedom Restoration Act (RFRA). It seems logical that if a for-profit enterprise is to be exempt from the ACA requirement, surely a religiously affiliated non-profit should be treated the same way.
Unfortunately, it’s not that simple.
The Hobby Lobby opinion was the result of a narrow 5-4 decision, with the late Justice Antonin Scalia siding with the conservative majority. Justice Scalia’s passing, along with Republicans in the Senate refusing to even consider confirmation hearings for Merrick Garland — the judge that President Obama has nominated to succeed Scalia — throw the outcome of the case in considerable doubt. If the justices remain consistent with their positions on the Hobby Lobby case, that would create a 4-4 standstill, which would allow the lower ruling in the case to stand.
That will be a crushing blow to the Little Sisters of the Poor Home for the Aged, who lost their 2013 suit against the government in the 10th Circuit Court of Appeals. Their case has been consolidated with Zubik v. Burwell, and no decision would essentially be the same as a defeat. Helen Alvare, a professor at the George Mason University School of Law who wrote a brief in support of the Little Sisters, observed that the government “is making the claim that the Little Sisters themselves don't have to swallow or implant anything, so what's the problem. But the Little Sisters are trying, in all aspects of their business practices, to walk the talk,” or, in other words, to act in full accordance with their religious principles.
This shouldn’t be that difficult of a call to make. Religious liberty is one of America’s foundational freedoms, and legislation that significantly undermines the free exercise of religion, no matter how well-intentioned, should not be able to override matters of conscience. In addition, that liberty does not vanish solely because individuals choose to exercise it collectively as part of an organization.
The decision in Zubrik v. Burwell will have far-reaching implications for decades to come. Robert Tuttle, a professor of law and religion at George Washington University Law School, labeled this case “an opportunity to see whether the court in Hobby Lobby was … recognizing RFRA as a huge carve out of federal statutes for religious activities or, in turn, as a little, narrow cul-de-sac.” For the sake of the nation, we hope that the court take the broadest view possible when it comes to religious liberty.