The Weird, Offensive Argument At The Heart Of The Supreme Court Case Against Birth Control


Pro tip: if you’re about to file a brief in the Supreme Court, it’s a good idea to make sure that you haven’t made any arguments that could give the Court’s blessing to race discrimination. Otherwise, you risk falling into the same trap that caught the lawyers behind a major challenge to women’s access to birth control now pending in the Supreme Court.

Two years ago, the justices met to consider Burwell v. Hobby Lobby. It was supposed to be an epic showdown between working women and bosses with religious objections to birth control. Hobby Lobby’s owners claimed the right to defy federal rules requiring them to include many forms of contraceptive coverage in their employees’ health plans — and they won! Moreover, they won in a decision that threatened to upend the balance of power between religious objectors and the rule of law. Hobby Lobby effectively rewrote American religious liberty law to enable objectors to avoid their legal obligations, even when doing so would harm the rights of third parties.

Yet, while Hobby Lobby was undoubtedly a victory for conservative religious objectors, it is far from clear just how much of a victory this decision will turn out to be. Although Hobby Lobby allowed religious objectors to exempt themselves from the particular birth control regulation at issue in that case, it strongly implied that the government could use an alternative method to promote access to birth control. This alternative is now being considered by the Supreme Court in a bloc of cases consolidated under the name Zubik v. Burwell, which the justices will hear next week.

The religious objectors in Zubik are backed by a legal A-Team of Supreme Court advocates and specialists in conservative religious liberty claims — including Paul Clement, the de facto Solicitor General of the Republican Party. For all the talent amassed behind Team Zubik, however, one of their primary arguments is fatally flawed — or, at least, it requires the Court to accept a framework that would require truly bizarre results. Indeed, taken to its logical end, the arguments against the birth control rules offered in Zubik could allow religious objectors to engage in overt race discrimination, just so long as these objectors believed that such discrimination was required by their faith.


Regulations implementing the Affordable Care Act require employer-provided health plans to cover a wide range of medical treatments, from cancer screenings to childhood immunizations to contraceptive care. The rules at issue in Zubik permit employers that object to birth control on religious groups to opt out of that requirement by filling out a brief two-page form. At that point, the employer is relieved of its obligation to provide birth control coverage, and, in most cases, the insurance company that provides coverage to the objector’s employees will work directly with those workers to provide them a separate, contraception-only plan.

The Zubik plaintiffs object even to this opt-out method, however, claiming that, by filling out the form, they set in motion a chain of events that leads to a woman receiving medical care that they find objectionable. In essence, they claim that, under the federal Religious Freedom Restoration Act (RFRA), the government must allow religious objectors to opt out of the birth control rules on the terms dictated by those objectors.

Under RFRA, government actions that “substantially burden a person’s exercise of religion” must yield to a religious objection unless they further “a compelling governmental interest.” The plaintiffs in Zubik and a group of similar cases argue, in two sets of briefs filed by two separate legal teams, that the federal birth control rules fail this test because they are “riddled with exemptions and inconsistencies that belie any compelling need to deny an exemption here.”

According to one of those briefs, “the Government cannot plausibly assert any ‘compelling’ need to deny Petitioners an exemption from the mandate because the same mandate ‘’presently does not apply to tens of millions of people’’ under its various exemptions.” The briefs go on to list a few categories of employers that, it claims, are not subject to the birth control rules — including churches, small employers and employers that are temporarily permitted to offer non-compliant health plans under an “exception for ‘grandfathered health plans.’” Thus, the briefs argue, the government must exempt religious objectors under the terms dictated by those objectors because it also provides exemptions for certain other kinds of employers.

In its own brief, the Justice Department casts serious doubt on the plaintiffs’ suggestion that “tens of millions of people” do not have birth control coverage due to the exemptions named by the plaintiffs. Yet even if the plaintiffs’ numbers are accurate, the Justice Department explains, the plaintiffs’ arguments would lead to truly absurd results:

[I]t is implausible to suggest that the government cannot have a compelling interest in the application of a law because that law allows for some exceptions — particularly a law like this one that already protects well over 100 million employees and dependents. Numerous organizations are not required to pay taxes; half the country’s draft-age population is exempt from registering for the draft; and Title VII does not apply to millions of employers with fewer than 15 employees. Yet no one would suggest that raising tax revenue, raising an army, and combating employment discrimination are not compelling interests.

“Title VII” refers to the federal ban on employment discrimination on the basis of “race, color, religion, sex, or national origin,” and, as DOJ notes, millions of small employers are exempted from this ban. Yet even the most conservative members of the Supreme Court reject the idea that religious objectors may exempt themselves from the federal ban on race discrimination simply because the law contains other exemptions. As Justice Samuel Alito wrote for the Court in Hobby Lobby, “the Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”


Yet, if the fact that a law exempts millions of individuals is sufficient reason to give religious objectors a blanket exemption from that law, then Alito’s conclusion regarding race discrimination is incorrect. The Zubik plaintiffs’ own arguments suggest that employers are free to engage in race discrimination so long as they have a religious justification to do so.

This is not, it should be noted, an academic point. Shortly after the federal ban on whites-only lunch counters became law, a South Carolina restaurant claimed that it should be exempt because its owner believed that such a ban “contravenes the will of God.” The conservative Bob Jones University made a similar claim to justify its one-time ban on interracial dating (it lost). A Virginia judge once justified his state’s ban on interracial marriages because “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

Admittedly, these sorts of arguments have grown less and less common as openly racist faiths have faded in popularity. The Zubik plaintiffs’ arguments, however, have implications far beyond race discrimination. Many of the same voices calling for religious objectors to be able to decide whether their employees have access to birth control coverage also raise similar arguments in favor of anti-LGBT discrimination. If the Zubik plaintiffs prevail, it will not be long before business owners that refuse to serve LGBT customers bring their own case to the Supreme Court.