What a difference an extreme right-wing Supreme Court justice makes. The Supreme Court will hear Zubik v. Burwell Wednesday, a consolidation of challenges to Obamacare's contraceptive mandate which would expand the exemption granted to Hobby Lobby to an extreme. But without Antonin Scalia on the court, the best plaintiffs can hope for is a split decision among the remaining eight justices.
At issue is an accommodation the Obama administration created for religious organizations which did not want to be compelled to provide contraception coverage in their employees' healthcare plans, just like in the Hobby Lobby case. But these are generally religiously-affiliated non-profits instead of private for-profit companies.
The administration set up a complicated workaround in which the only thing these organizations had to do to comply with the law was notify either their insurance company or the federal government that they were opting out of the coverage. That, these groups argue, is too much of a burden. Seven appeals courts thought that was bullshit, but one ruled for the plaintiffs which created the split set of circuit court decisions the Supremes needed in order to take the case. The Supremes with Justice Antonin Scalia, that is. Now that he’s gone, things are much more unpredictable.
Now that Scalia's death has robbed the plaintiffs of a fifth vote, the nonprofit objectors face two unappealing outcomes: Losing entirely, or a 4-4 tie that leaves in place the lower court opinions that backed the Obama administration. In other words, a lose-lose. […]
But if there is a majority for the Zubik plaintiffs, at least one usual proponent of expanding religious freedom exemptions thinks it would harm religious freedom in the long term.
Douglas Laycock, a law professor at the University of Virginia, wrote an amicus brief in support of the religious objectors in Hobby Lobby, but in a recent Washington Post op-ed, he said the Zubik case went too far. "They say that only they can say what is a substantial burden on their exercise of religion; the courts must take their word for it," Laycock wrote. "But that would give rise to even more extreme claims and discredit the cause of religious liberty."
He also disputed their claim that the Obama administration's plan was invalid because it decided which categories of groups could get which kind of exemption. "If legislators and administrative agencies cannot enact a narrow religious exemption without it being expanded to become all-inclusive," Laycock wrote, "many of them will not enact any religious exemptions at all."
In other words: Be careful what you wish for, zealots. A split decision, however, wouldn't necessarily be good news for the government, as it would make for a messy map of different laws being applied in different parts of the country because seven circuits have sided with the government and one has sided with the religious not-for-profits, and those circuits encompass multiple states. This is how complicated that looks:
The other, distinct possibility is that the court will just delay making its decision until the full complement of judges is on board, which could well be more than a year away. Or Justice Anthony Kennedy comes to his senses and this bullshit case is decided to protect both women's health and that whole First Amendment church/state thing.