SCOTUS is getting another dose of controversy this week (NYT):
In a decision that drew an unusually fierce dissent from the three female justices, the Supreme Court sided Thursday with religiously affiliated nonprofit groups in a clash between religious freedom and women’s rights. The decision temporarily exempts a Christian college [Wheaton] from part of the regulations that provide contraception coverage under the Affordable Care Act.
Koppelman gets to the heart of the matter:
The Obama administration had accommodated nonprofit religious organizations, colleges, and hospitals on the condition that they fill out a form indicating their objection and send that form to their insurance company or administrator, which must then provide the medical services free of charge. Hobby Lobby required that the same accommodation be extended to religious for-profit employers. Some of the nonprofit organizations, including Wheaton College, objected that filing the form made them complicit in the provision of the contraceptives. The Court agreed, holding that the college need only file a letter with the federal government stating its objections.
That would create a byzantine set of regulations, according to Sotomayor:
[T]he Court does not even require the religious nonprofit to identify its third-party administrator, and it neglects to explain how HHS is to identify that entity. Of course, HHS is aware of Wheaton’s third party administrator in this case. But what about other cases? Does the Court intend for HHS to rely on the filing of lawsuits by every entity claiming an exemption, such that the identity of the third-party administrator will emerge in the pleadings or in discovery? Is HHS to undertake the daunting—if not impossible—task of creating a database that tracks every employer’s insurer or third party administrator nationwide?
Waldman is also worried about the floodgates opening:
On its surface, this case appears to be a rather dull dispute about paperwork. But it actually gets to a much more fundamental question about what kinds of demands for special privileges people and organizations can make of the government on the basis of their religious beliefs. …
[T]here is seemingly no length this Court says the government shouldn’t go to accommodate this particular religious belief. A company or a university doesn’t want to follow the law? Well, we have to respect that — they can just sign a form stating their objection. Oh, they don’t want to sign the form? Well never mind, they don’t have to do that either.
Morrissey tells everyone to chill:
[T]he issuance of a temporary injunction is not a decision, as Sotomayor well knows. Sotomayor herself issued a temporary injunction to stop enforcement of the mandate on the Little Sisters of the Poor, which caused an eruption of hysteria and Know-Nothing anti-Catholic bigotry at the beginning of the year — a foreshadowing of what we saw this week, actually. A stay is just a pause that allows the courts to consider the issue at hand before enforcement does serious damage to the plaintiff, based on a reasonably good chance for the petitioner to win the case but not a decision on the merits. The court signaled that they want a closer look at the accommodation, not yet that it’s not acceptable.
This is good news, as far as I’m concerned. As a general rule, I hold an expansive definition of religious liberty. As a technical matter, I think that Whelan is right, and that there’s nothing in Hobby Lobby that contradicts the subsequent Court order. Still, I can understand why the three dissenting justices feel sandbagged. Justice Alito, in the majority opinion, held up the HHS carve-out for religious non-profits as an alternative HHS might have offered for-profit companies, but did not. Now the Hobby Lobby majority, joined by Justice Breyer, rejects even that possibility.
But not definitively, and that’s why I think there’s less here than meets the eye. Again, the injunction is temporary, and is no doubt pending the full Court hearing the Little Sisters case, which will decide whether or not the government’s carve-out for religious non-profits is a reasonable and sufficient accommodation of religion.
But Drum worries that the Wheaton injunction is just another step of many more:
For the last few days, there’s been a broad argument about whether the Hobby Lobby ruling was a narrow one—as Alito himself insisted it was—or was merely an opening volley that opened the door to much broader rulings in the future. After Tuesday’s follow-up order—which expanded the original ruling to cover all contraceptives, not just those that the plaintiffs considered abortifacients—and today’s order—which rejected a compromise that the original ruling praised—it sure seems like this argument has been settled. This is just the opening volley. We can expect much more aggressive follow-ups from this court in the future.