The U.S. Supreme Court in March heard oral arguments in a case that will determine whether religiously affiliated non-profits have the right to deny women employees access to birth control on the basis of the groups’ theological beliefs.
The March 23 argument lasted 90 minutes and was marked by spirited exchanges and sharp questioning from the justices. A clear division emerged from the court’s liberal and conservative wings, leading some analysts to speculate that the high court may split 4-4.
Justice Anthony M. Kennedy, who is often considered the deciding vote on controversial issues like this, said there is no obvious way to distinguish when it is acceptable for the government to burden someone’s faith and when it is not.
“Sometimes when a religious person…is a member of a society he does have to accept all sorts of things that are terrible to him,” said Kennedy during the hearing for the consolidated case of Zubik v. Burwell.
As examples, Kennedy said Quakers must pay taxes to support military actions and war, and a Christian Scientist must report a car accident even if he or she knows doing so will result in the provision of medical care that he or she may oppose.
The case revolves around a compromise offered by the federal government to the Affordable Care Act’s (ACA) so-called birth-control mandate. Those who run religiously affiliated non-profits can free themselves of the mandate to provide contraception by signing a form or writing a letter stating their opposition to providing birth control in their employer health-insurance plans. At that point, the government takes care of the rest by arranging for the coverage with a third-party insurance company at no cost to the objecting employer.
In court, the religious non-profits have asserted that even filling out the form or writing the letter is a burden on their religious liberty.
The three women on the high court seemed to doubt the idea that filling out a short form constitutes a substantial burden to anyone’s religious freedom.
“When will any government law that someone claims burdens their practice ever be insubstantial?” asked Justice Elena Kagan, noting that all religious groups take their dogma very seriously.
Kagan also said that the United States likely could never “have a government that functions” if religious exemptions were provided to every group that said it had a sincere objection to various laws.
Justice Sonia Sotomayor said she feared this case could actually harm houses of worship if the groups challenging the accommodation win. She said Congress might stop granting exemptions to religious organizations if doing so becomes too complicated or gives too many groups permission to opt out.
Justice Ruth Bader Ginsburg struck at a core argument of groups like the Little Sisters of the Poor, a group of Roman Catholic nuns who run a chain of nursing homes for the elderly and claim that opting out of the ACA requirement leads directly to the distribution of birth control – something they oppose.
“[Opting out] is not an authorization” to provide contraceptives, she said.
Meanwhile Kennedy, a Roman Catholic, said he has consulted the works of Saint Benedict and others in an attempt to “try and find a line” that can be clearly drawn between acceptable violations of one’s conscience and unacceptable ones.
Kennedy did not fully tip his hand during the argument. But it did appear that he was having trouble finding a clear test that would decide when religious groups should be required to obey laws they don’t like and when they should be able to opt out.
Two justices from the court’s conservative wing, however, seemingly had no such philosophical quandary. Chief Justice John Roberts pressed U.S. Solicitor General Donald Verrilli on why women can’t obtain coverage for birth control through a health care exchange rather than their employer if they work for a religious non-profit.
Verrilli responded that the idea behind the birth-control mandate is to make it so women do not have to obtain multiple health care plans or search out a doctor who can provide them with the care they need.
In late March the high court asked for some additional information from both sides, leading to speculation that the justices may be trying to craft a compromise over the matter.