Two years ago, the Supreme Court heard oral arguments in Burwell v. Hobby Lobby, a case which seemed to present the stark question of whether many women’s bosses get to decide if they have access to birth control. Hobby Lobby was one of the biggest stories of that year, with interest groups and elected officials on both sides of the issue blitzing the media to offer their viewpoints about this case.
This year, with the Donald Trump Presidential Reality Show dominating headlines, a similar case called Zubik v. Burwell has received considerably less attention than Hobby Lobby. But Zubik, which the justices will hear on Wednesday, is also a more important case. Though Hobby Lobby rewrote longstanding legal doctrines in ways that could do considerable harm both to women seeking birth control and to LGBT Americans, it also left considerable uncertainty about whether the Supreme Court was actually willing to let religious objectors strip away the rights of others.
Zubik is likely to resolve much of this uncertainty. If the plaintiffs prevail in Zubik, it will mean that a woman’s boss can have a considerable voice in that woman’s sexual and reproductive choices. If they do not prevail, however, then Hobby Lobby could prove to be a dog that did not bark — a brief scare for women and sexual minorities that, ultimately, proved to be little more than a paper tiger.
What’s at Stake?
Like Hobby Lobby, Zubik concerns federal rules intended to expand women’s access to birth control. Under these rules, most employers must include a wide range of treatments, from childhood immunizations to cancer screenings to contraception, in the health plan they offer employees. Hobby Lobby held that employers who object to birth control on religious grounds may refuse to offer health plans that cover such treatment.
Yet Hobby Lobby also strongly implied that the government could use an alternative method to foster access to birth control. Under this alternative, religious objectors may either comply with the birth control rules or fill out a two-page form that exempts them from having to provide contraceptive coverage to their employees. In most cases, the objector’s insurance company will then work directly with the objector’s employees to provide them a separate, contraception-only health plan. This fill-out-the-form option is now being challenged in Zubik by religious employers who object to doing the small amount of paperwork they must complete in order to receive an exemption.
Thus, if the Zubik plaintiffs do not prevail, the overwhelming majority of women will receive birth control coverage — albeit through a fairly roundabout method. If these plaintiffs do prevail, on the other hand, that decision could have sweeping implications that stretch far beyond birth control.
Both Zubik and Hobby Lobby concern a federal law known as the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion” unless it does so “in furtherance of a compelling governmental interest” and uses “the least restrictive means of furthering that compelling governmental interest.” Lawyers will recognize this compelling interest/least restrictive means test as the elements of “strict scrutiny,” a highly skeptical level of judicial review. Outside of the religious context, the government typically loses cases involving strict scrutiny.
Before Hobby Lobby, however, strict scrutiny was less, well, strict in religious liberty cases. As one study of “every strict scrutiny decision published by the district, circuit, and Supreme courts between 1990 and 2003” determined, the government typically wins less than one in three cases invoking the compelling interest/least restrictive means test. Yet it won 59 percent of religious liberty cases. A different study found even starker results, concluding that nearly 88 percent of religious liberty plaintiffs lost under the standard described in RFRA.
A likely reason for the government’s high win rate in these cases is that, before Hobby Lobby, the Court did not permit religious objectors to wield their objections to limit the rights of others. The justices, moreover, have been especially cautious about permitting businesses to raise religious objections that could harm their employees or customers. As the Court explained in United States v. Lee, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
Hobby Lobby opened the door to suits by religious objectors who want to assert their religious beliefs at the expense of others. Zubik will determine whether many women who wish to use birth control will be the first casualty of this new regime. And if religious objectors truly do have the power to use their religious beliefs to cut away at other people’s rights, then it is unlikely that these suits will stop at birth control. The next plaintiffs in line are likely to be anti-gay businesses who refuse to comply with laws prohibiting discrimination. Or they could be plaintiffs with even more sinister goals. In at least one case, a federal judge held that a member of a religious cult accused of violating child labor laws could refuse to cooperate with investigators looking into these alleged violations.
The Case for Liberal Optimism
There are several reasons to believe that the religious objectors will not prevail in Zubik. For one thing, the overwhelming majority of federal appeals courts to consider the fill-out-the-form option at issue in Zubik have upheld it — including some very conservative judges. For another, the Supreme Court looks very different right now than it did before the late Justice Antonin Scalia’s death last month. Hobby Lobby was a 5-4 decision, and one of the five justices in the majority is no longer around to break a tie among the eight remaining justices on the Court.
There’s also good reason to doubt whether the justices will split 4-4 in Zubik. The four Hobby Lobby dissenters are unlikely to flip their vote to side with the Zubik plaintiffs, and conservative Justice Anthony Kennedy signaled in Hobby Lobby that his vote is now in play.
Although Kennedy joined Justice Samuel Alito’s majority opinion in Hobby Lobby, he also wrote a separate concurrence suggesting that he is uncomfortable with the idea that religious objectors have a sweeping power to limit other people’s rights. Religious exercise, according to Kennedy, may not “unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.” Justice Kennedy explained that he joined Alito’s opinion, at least in part, because “the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage” — namely the fill-out-the-form option. This very well may have been a signal that Kennedy will uphold that option now that it is before the Court.
Moreover, while a vote in favor of birth control access in Zubik does not necessarily mean that Kennedy would vote the same way in anti-discrimination cases, Kennedy typically votes with the Court’s liberal bloc in gay rights cases. Thus, if he breaks with his fellow conservatives in Zubik, then there is a good chance that many of liberals’ darkest fears about Hobby Lobby can be put to bed.