To any observer of both days, however, there was also something profoundly different in comparing those events. Nearly two years before, nine Justices heard the arguments in the Hobby-Lobby case; on March 23, 2016, the sixth anniversary of the day the president signed the ACA into law, there were only eight, and the absence of that particular one justice that may change the history of the religious freedom guaranteed under the First Amendment to the U.S. Constitution. That Justice was the late Antonin Scalia. That missing justice, often seen swaying back and forth in his chair as he listened intently to the arguments presented, reminded me of the oft-stated metaphor of "the elephant in the room," where, although the animal is large enough to seen, the people in that room make it a particular point to avoid mentioning it. To me and to others, the opposite was true today: although Justice Scalia was not in the courtroom, his presence was palpable, and people did talk about him. Before proceeding any further, allow me to "set the table" and explain why the U.S. Supreme Court was hearing the case referred to as Zubik v. Burwell, since that was the name given to the first case among many others in dealing with the issue to reach the Supreme Court, and any subsequent decision in these cases will be known by that title.
Who, for example, is Zubik? The Most Rev. David A. Zubik is the Catholic Bishop of Pittsburgh, and in the Court's language called, "the Petitioner" (in other trials, "the plaintiff"), who was present in the Court the day of the oral arguments, along with other members of the U.S. Catholic hierarchy, including Cardinal Donald Wuerl, the Archbishop of the Roman Catholic Archdiocese of Washington, and Bishop Lawrence T. Persico, the Bishop of the Catholic Diocese of Erie, Pennsylvania. Also present in the audience were Fr. Frank Pavone, Head of the Priests for Life, and members of the Little Sisters of the Poor scattered throughout the Court. Did this case, then, involve only the dioceses of Bishops Zubik and Persico, Archbishop Weurl, Priests for Life, and the Little Sisters of the Poor? In short, was this a case that was being raised only by Catholics? Not quite: along with the Catholic Dioceses and organizations mentioned, East Texas Baptist University, Geneva College, and Southern Nazarene University, all Protestant schools, joined in bringing this case to the High Court.
The paramount legal questions confronting the justices that were at the heart of this case were these:
1. Does the Government violate the Religious Freedom Restoration Act (RFRA) by forcing objecting religious nonprofit organizations to comply with the Department of Health and Human Services, (HHS) contraceptive mandate under an alternative regulatory scheme that requires these organizations to act in violation of their sincerely held religious beliefs?
2. Can the Government satisfy RFRA's demanding test for overriding sincerely held religious objections in circumstances where the Government itself admits that overriding the religious objection may not fulfill its regulatory objective, namely, the provision of no-cost contraceptives?
If those questions are difficult to understand, perhaps a clearer view of the religious dilemma facing the Catholic and Protestant organizations involved came when, in his opening remarks, the attorney for the Little Sisters stated: "The Little Sisters of the Poor and their co-petitioners face a dilemma that the Religious Freedom Restoration Act does not allow. They can adhere to their religious beliefs and pay millions of dollars in penalties, or they can take steps that they believe to be religiously and morally objectionable, and that the government deems necessary, for them to provide contraception coverage through their health care plans. Now, the government concedes the sincerity of these religious beliefs, but it attempts to recast them as an objection to the very act of opting out or objecting. And with all due respect, that is simply and demonstrably not true."
And Burwell? Her name appears on the docket because as Secretary of Health and Human Services (HHS), she is responsible for carrying out the laws passed by Congress and signed by the President of the U.S. in matters related to her jurisdiction. In the language of the Court, Shirley Burwell is "the Respondent." Strangely, neither she nor any other member of the president's administration was present in the Court, although previous Secretaries of HHS have attended the Court's ACA-related cases in recent years. But their absence belies the importance of the case to the Obama Administration, for Donald Verrilli, the Solicitor-General of the U.S., the nation's leading lawyer, appropriately attired in formal morning suit, defended the administration's case, along with a phalanx of supporting attorneys who arrived carrying reams of paper. The defenders of the Little Sisters and the other "Petitioners" were the very talented Paul Clement, who served as Solicitor-General under President George W. Bush, and Noel Francisco, representing the different religious employers, including schools and other entities under the Archdiocese of Washington, and the Dioceses of Pittsburgh and Erie.
To the frequent observer of these proceedings, each session of the Court has a rhythm and flow of questions that leads one to believe that the justices hearing the case have read, and perhaps even been influenced by, submitted legal opinions either favoring one side or the other. Known as amicus curiae, or "Friends of the Court" briefs, they seek to confirm a point of law or legal precedent from existing statutory (written) law, as well as previous Supreme Court decisions that will bolster their side. In Zubik v. Burwell, more than forty amicus briefs were filed for the Petitioners, including, amongst others, those of Orthodox Jewish Rabbis, the Conference of Catholic Bishops and the Catholic Defense League, Members of the Lipan Apache Tribe, and the National Association of Evangelicals. Further, 207 members of Congress - 32 Senators and 195 Representatives - signed the petition supporting the Petitioners. Despite being billed as "a bi-partisan effort," I saw not one member of the Democratic Party listed among the legislators supporting the Petitioner.
The amicus briefs for the Respondent numbered twenty-nine, and included supporters of the governmental restriction that may come as a surprise. Among those were the Union for Reform Judaism, the Center for Inquiry of American Atheists, the Baptist Joint Committee on Religious Liberty, and not to be excluded, Catholics for Choice and its supporting organizations, such as The National Coalition of American Nuns. Surprised? You shouldn't be. There was also support from Congress: 127 members signed the petition siding with the Respondent, including 33 Senators and 94 Representatives, and I was unable to find a Republican among them.
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Unlike most other oral argument days at the Court with two one-hour sessions, Zubik v. Burwell was the only case heard that day, and was allotted ninety minutes. After the taking of the oath of attorneys now licensed to practice before the Supreme Court, Paul Clement, the attorney representing the Petitioners, began as all cases do: "Mr. Chief Justice, and may it please the Court..." What Clement, and later Francisco, sought to emphasize in their remarks was not only the violation of the Constitution built into the law, but also to convince the justices of the exemplary charitable work done by the Little Sisters of the Poor and Aged (their correct legal name), as well as other religious organizations. It would be an uphill battle from the outset.
Slightly more than one minute after Clement started, and long before he had completed his introductory remarks, Justice Sonia Sotomayor interrupted, a trait that I have noticed that she now does with increasing frequency, and here attempted to dismantle, both legally and logically, the Petitioners' case: "Could you explain to me the analogy with military objectors during the war?... They were going to jail, and many of them did go to jail, because of this belief. Why is going to jail less burdensome or less important than paying a financial penalty?" Clement, who saw immediately what Justice Sotomayor was driving at, responded with alacrity and with assurance that she, figuratively speaking, was comparing apples and oranges, and she dropped that line of questioning. But she was not finished: she sought to know why churches have to prove their exemptions, and here the audience was treated to another case in which this particular Justice has misread the law. Clement: "Well, first of all, Your Honor, that's just not true with respect to the churches, (emphasis mine) their integrated auxiliaries, and the religious orders that stick to their knitting and only engage in religious activity." But Justice Sotomayor had laid out the groundwork for the four justices who would, in their questioning, seek the same objective: show that the Little Sisters have alternatives, even if those alternatives violate their religious principles.
Three other Justices picked up the questioning after Sotomayor, all of whom were really asking different versions of one question many times over, and which was at the heart of the government's case: if allowed, would not the exemption given to the Little Sisters et al. negatively affect women's health? Justices Ruth Bader Ginsburg and Elena Kagan left no doubt whatsoever that they were prepared to side with the administration's view because of the benefits the law afforded women. Justice Stephen G. Breyer, as is his wont, spent a lot of time asking lengthy questions, but I have no doubt that he, too, will not support the Little Sisters in their petition. But what about those justices who sought to raise questions dealing with the government's, not the Sisters', case?
There could be no doubt that Justice Samuel A. Alito, Jr., who wrote the majority opinion in the Hobby Lobby case, was the most outspoken defender of the claims of these non-profit religious institutions. Increasingly, it appears that he, along with the usually silent Justice Thomas, will most closely follow the direction of the jurisprudence earlier enunciated by the late Justice Scalia. Further, Chief Justice Roberts, who struck me as an excellent listener and skilled interrogator in this case, signaled what I take as his support for the Sisters as well. But again, it may come down to one vote: that of Justice Kennedy, which often does not bode well for social conservatives. What traveled through the legal blogosphere after the conclusion of the oral arguments, however, were the observations that both the Chief Justice and Justice Kennedy used similar language in questioning the Solicitor-General, especially when they both asked, albeit at different times during the questioning, "if the government was not hijacking" the Sister's health plan coverage? Lest that be considered hard evidence of the way both of those justices will vote in this case, it should be remembered that anyone who has observed Court arguments over any length of time will confirm that the nature of the questions any justice asks is not definitive proof that he or she will vote that way.
At this point, The Remnant reader may ask, if only rhetorically, what does all of this maneuvering and questioning mean to our religious liberty, once considered sacrosanct under the First Amendment, as well as to the future of the Little Sisters and the other Petitioners in this case? Of course, until the final decision is made public, all of this is speculation, but that speculation does point in a direction that cannot be overlooked: there could be very serious consequences to all the Petitioners. Allow me to explain some of the potential scenarios as a result of a tie vote in the oral arguments.
Since it is unlikely that Justices Ginsburg, Kagan, Breyer and/or Sotomayor will side with the Little Sisters, that would mean a 4-4 split, assuming that neither Justice Kennedy nor Chief Justice Roberts will stray from their earlier support of religious liberty that they displayed in the Hobby-Lobby case. If that tie vote is realized, then the lower Circuit Courts' decisions will hold: only the 8th Circuit, which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota, would allow religious organizations an exemption from paying for employees' benefits that include contraceptives. In the rest of the country, guided by the eight other Circuit Court decisions in favor of the government, paying for medical care insurance that includes contraceptive benefits would be required, regardless of religious beliefs.
One option would be that, based on the split vote, the justices would seek to move the case for adjudication over into a new Term, beginning in October, with the hope that a ninth Justice, a non-Scalia to be sure, would join the Court and allow a majority to form on this controversy. That is why the president and the Democrats in the congress seek to begin hearings on Merrick Garland's nomination, for they know - not believe - that he would join the four favoring the administration's "legacy" legislative achievement.
Another, but less likely scenario, is that some form of interim political solution among the Justices would be reached in which a "majority" position could be achieved, thus resolving the immediate question and avoiding a lengthy lapse of time before the issue was to be brought before the Court once more. Here, I must confess that Chief Justice Roberts may be more inclined to allow that course of action, something he did when he basically rewrote "Obamacare" and, along with Justice Kennedy, gave the constitutional green light to the Affordable Care Act.
The Little Sisters of the Poor and Aged have categorically stated they will close their nursing home facilities that employ 2600 people if they lose their case, for in the words of Sister Constance Veit, a caregiver in their Washington facility, "It's a matter of principle, of having to be involved in something we find morally reprehensible."
Justice Alito's opinion in the Hobby Lobby case includes these words: "...RFRA was designed to provide very broad protection for religious liberty." Justice Kennedy added: "In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and divine law." With Justice Scalia's death, the scales of justice appear to be moving inexorably in a way that will see a lessening of that fundamental right. As is often the case, the Latin proverb sums it up far better than I could: De minimus non curat lex - "the law does not deal in trifling matters."