The Supreme Court followed up on its strange order from earlier this year for the opposing sides in Zubik v. Burwell to consider a compromise by punting on the case, sending it back to the lower courts to examine a compromise solution that was suggested in that earlier order. It’s clear that a deadlocked Supreme Court did not want this ending in a tie, in which case opposing lower court rulings would stand.
The challenge, known as Zubik v. Burwell, was a consolidation of cases brought by religious nonprofits, including The Little Sister’s of the Poor, who objected to the work-around set up by the Obama administration to provide contraceptive coverage to employees of organizations opposed to birth control on religious grounds. The non-profits said that even filling out the form or sending a government the letter declaring their objections to covering birth control was a burden on their faith, because it set in motion the process by which their employees received the coverage from their insurers, though that coverage was not paid for or part of the employer plans. Lower courts’ have overwhelmingly rejected the challengers’ argument that the workaround violated 1993’s Religious Freedom Restoration Act (RFRA), though one appeals court ruled in their favor. (That case was not among those consolidated for the Supreme Court).
In sending the case back down to lower courts, the Supreme Court signaled that it believed a compromise could be worked out that didn't involve weighing the larger issues involved in the RFRA challenge.
In the opinion the Court clearly states that it "expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest." Just to make sure that the lower courts understand what the Court says by "no view on the merits of the cases," Justice Sotomayor wrote a concurring opinion putting an exclamation point on that part.
She writes "I join the Court’s per curiam opinion because it expresses no view on 'the merits of the cases,' 'whether petitioners' religious exercise has been substantially burdened,' or 'whether the current regulations are the least restrictive means of serving'a compelling governmental interest," and warned the lower courts that they "should not construe" either today's order or its earlier one in the case "as signals of where this Court stands."
What this demonstrates more clearly than anything is that the deadlock has broken the Supreme Court. It cannot resolve this key case when it's tied up 4-4. It also means that we need Democrats to take back the Senate. As Scott Lemieux tweets, "If Clinton wins and the GOP retains its Senate majority, we can have 4 more years of the Supreme Court unable to resolve crucial cases."
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