Image via Crisis Magazine
On Wednesday the Supreme Court heard oral arguments pertaining to the Zubik v. Burwell case on the issue of whether the Department of Health and Human Services’ (HHS) contraception mandate violates the rights of religious groups protected under the Religious Freedom Restoration Act.
In anticipation of this high-profile case, Cornell’s chapter of the Federalist Society hosted Prof. Richard Duncan of the Nebraska College of Law, for a lecture on religious liberty and the Little Sisters of the Poor, one of the plaintiffs in Zubik v. Burwell.
Duncan, a 1976 graduate of Cornell Law School, began his lecture by extolling the judicial legacy of the recently deceased Supreme Court Justice Antonin Scalia. Referring to Scalia as an “ideological twin”, Duncan noted that the late justice was an unwavering proponent of originalism and a staunch defender of, among many other sacred rights and liberties, religions liberty. Duncan did admit, however, that in his opinion Scalia did err once—in a 1990 majority opinion for Employment Division v. Smith, which Scalia authored.
That case and several others were seen as assaults on religious liberty (Employment Division dealt with the use of peyote in religious rituals), and in response Congress passed and President Bill Clinton signed into law the Religious Freedom Restoration Act (RFRA) in 1993.
Duncan drew attention to specific wording in the RFRA which states that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the burden is “in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”
In the 2014 case Burwell v. Hobby Lobby Stores the Supreme Court, in a 5-4 decision, recognized the religious beliefs of closely held for-profit corporations such as Hobby Lobby and their right not to violate these beliefs. In the case of Hobby Lobby, the owners did not want to cover certain types of contraceptives, like the morning after pill, which they believed to be tantamount to abortive agents.
Professor Duncan drew attention to Justice Ruth Bader Ginsburg’s dissent, in which she argued that the forced provision of contraceptives is too far removed from religion to qualify for RFRA’s protections. Duncan argued that this line of reasoning implies that the courts and Congress have the privilege of determining what is and what is not a religious belief or religious exercise, when in fact RFRA protects all exercises of religion and leaves it up to the believer to decide what his religion compels him to do or not to do.
Moving on to Zubik v. Burwell, and specifically the Little Sisters of the Poor, one of many plaintiffs in the case, Duncan said that because the Little Sisters did not have a grandfathered-in insurance plan, their failure to comply with the contraception mandate would cost them an estimated $70 million per year. That amount would end the organization, which provides free old-age care in 31 countries around the world.
The main legal issue is whether the HHS’s contraceptive mandate and what the Little Sisters of the Poor and similar religious organizations find to be religiously unacceptable “accommodations” provided by the HHS force religious organizations to violate their religious beliefs and therefore violate RFRA.
Professor Duncan argued that, based on the Hobby Lobby ruling, the plaintiffs should prevail in this case, but because of the absence of Justice Scalia, there might be a 4-4 tie which would allow the lower court decisions, in favor of HHS, to hold. The professor did offer one glimmer of optimism when he said that typically liberal Justice Stephen Breyer may switch sides and vote with the typically conservative justices, based on Breyer’s actions in a similar situation years before.
