Not Much New in Oral Arguments in Contraceptive-Requirement Accommodation Case

Steven D. Schwinn, John Marshall Law School

The Supreme Court heard oral arguments yesterday in Zubik v. Burwell, the case testing whether the government's accommodation to the contraceptive requirement for religious nonprofits violates the Religious Freedom Restoration Act. Our preview is here.

The big news is, well, that there's no big news. Nothing new came out in oral arguments, and the justices' questions seemed only to put their positions on public display or to help them write their mostly-already-decided decisions. The Court spent plenty of time on how the accommodation works (and therefore whether it's a substantial burden), and whether there are other ways the government can achieve its interests (and therefore whether the accommodation is narrowly tailored). The number and types of exceptions already built into the requirement will clearly play a part in the decisions (because they show, or don't, how the accommodation isn't narrowly tailored, depending on your view). The question where the government does, or can, draw the line between religious nonprofits and churches will also be important (for the same reason). But none of this is really new.

The justices seemed to divide four-four, traditional progressives for the government and traditional conservatives for the nonprofits. Justice Kennedy may have left himself a small (very small) opening to go with the progressives; but if he does, it'll be on narrowly tailoring. (Justice Kennedy bought the nonprofits' theory that the government accommodation "hijacked" their insurance coverage--"hijack" being the word of the day for the nonprofits and the conservatives--and therefore created a substantial burden on their religious practice.)

If there's a four-four split, the lower courts' decisions will stand. This means, without some other action by the Court, that the accommodation will be invalid only in the Eighth Circuit--the only one to rule for the nonprofits so far--and valid in the rest of the country.