It’s not often that the Supreme Court is unanimous. And it’s not often that they defer to a lower court. But just last week, the high court did both.

The Supreme Court punted the controversial Obamacare case Zubik vs. Burwell back to the lower courts, telling both sides to compromise. The case pits the government and its desire for free contraception against religious employers who object to providing it.

What’s happening is crucial because it’s indicative of broader trends in the fight to protect religious liberty.

Obamacare requires employers to provide contraception through their insurance company. Not just any contraception—all kinds that are approved by the FDA. Some religious groups oppose this federal mandate because many of the contraceptives are abortifacient, meaning that they kill a fertilized embryo. There are many different kinds of contraception—some kinds keep an egg from being fertilized at all, but others destroy a fertilized embryo, resulting in an abortion.

Religious groups like the order of nuns Little Sisters of the Poor (why yes, it is basically the government versus nuns) refuse to partake in actions that legitimize abortive drugs.

So the government said that religious groups could object by signing a form, authorizing the government to provide the contraception through the insurance company to give to the employee.

Sounds good. It’s just a form, right? No big deal, just sign.

Here’s the catch. To nuns with the Little Sisters of the Poor and to Christian colleges like Geneva, filing a form has moral consequences. It still means that employees are using these drugs because of the direct action of the employer. Additionally, if federal funding could pay for abortifacients, the door is potentially open for the government to fund other kinds of abortion. Filing the form means further cooperation, not exemption.

Think about it this way. Imagine that your boss tells you to kill someone. You say no. He says that he understands your problem with his request. So all you have to do is sign a form, and then he’ll kill someone for you. Do you sign the form? Are you responsible for the death? This is how the religious groups see the moral conflict at hand.

It is possible for the government to provide healthcare without infringing upon religious liberty. They can exempt religious nonprofits like they do churches. They can provide contraception directly from the government without even involving the religious groups, or the insurance they pay for. They can exempt them like they do the mega companies like Pepsi and Chevron.

But instead, the government chooses to violate religious freedom.

Religious liberty is protected both by the Constitution and the 1993 Religious Freedom Restoration Act (RFRA). The RFRA states that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” If religious liberty needs to be restricted, then it must be in the least restrictive way possible and it must involve compelling government interest.

The debate lies there. Is this law the least restrictive way to provide healthcare for women? Does it involve a compelling (federal) government interest?

Perhaps a similar argument could be made about the transgender bathroom laws. But that’s an article for another day.

 Since the passing of Justice Antonin Scalia, the Court has come to a deadlock on controversial issues like this one. That may set a precedent for the future of religious liberty.

So last week, the Supreme Court realized that the government shouldn’t penalize religious groups if there’s a different way to reach the government’s goal. And now the case is being sent back down to the lower courts to find common ground. But can both groups actually come to a compromise? I guess we’ll see. And I guess we should watch the November election even more closely. After all, a new president also means a new Supreme Court justice…and decisions about significant religious liberty cases like this one.



Photo Credit:


Please enter your comment!
Please enter your name here