WASHINGTON – It has been over a month since Justice Antonin Scalia died, and the Supreme Court is moving on. President Barack Obama and Congress are no closer to deciding who should take Scalia’s place, but his chair is already filled by Justice Anthony Kennedy.
The black cloth that was draped over his unoccupied seat was gone, and the justices have changed seats. But for the religious organizations in a case called Zubik vs. Burwell that the court heard Wednesday, any hope of a conservative ruling rests in that chair and its current occupant: Kennedy.
“It’s one of the most important religious freedom cases in decades,” said Rep. Keith Rothfus, R-Pa., who attended the hearing. “It’s going to test where religious freedom goes in this country – does it stay inside the church, or does it go out into the street [to] things like Catholic Charities of Pittsburgh?”
Representing that charity is Bishop David Zubik, head of the Diocese of Pittsburgh. His name is in the case title, but he is just one of seven organizations, including the Little Sisters of the Poor, that has been rolled into one court case.
The case concerns the religious freedoms of religious-affiliated groups. The Affordable Care Act says that contraception must be covered but exempts religious organizations such as churches.
Lawyers Paul Clement and Noel Francisco argued that religious-affiliated groups – such as Christian charities or universities – should also be exempt. They claim that the law violates the Religious Freedom Restoration Act because paying for something their religion finds sinful violates their rights.
Kennedy seemed to waver over whom he would support. When questioning Solicitor General Donald Verilli, who represented the government, Kennedy said that Verilli “established there was a burden” to religious nonprofits. He also questioned if the current system was truly “the least restrictive.” Clement and Francisco argued it was not.
But Kennedy also had trouble including religious universities in the same category as faith-related groups like Little Sisters of the Poor.
“It’s a very difficult thing for this court to write an opinion where, if you have a religious exception, you have to treat a university the same,” Kennedy said.
At one point Justice Clarence Thomas leaned forward and adjusted his microphone, drawing a gasp from the audience. Thomas has asked a question during oral arguments only once in the past decade, on Feb. 29 in a case concerning gun rights. Instead, he grabbed some books set near the microphone and leaned back in his chair, drawing a disappointed sigh from the room.
The court’s liberals all seemed aligned with the government. Several justices questioned how much freedom religious groups are entitled to.
“So what’s the line?” Justice Stephen Breyer asked Clement. “Why do the Quakers have to pay the taxes for [the Vietnam War], but you don’t find the religious Jew or Muslim getting an extra day off during the week when the law says nobody can work on Sunday because their Sabbath is on Saturday?”
It was a beautiful spring day outside the courtroom, and a congregation of protesters on both sides of the issue gathered on the court’s front steps. Families, nuns and college students all took turns holding signs and singing.
After the hearing, lawyers and laypeople supporting the church groups addressed the crowd. One of the speakers was Millie Johnson, an associate professor of criminal justice at Geneva College near Pittsburgh.
“Geneva was founded on Christian principles, and I stand on those exact principles,” she said. “That’s one of the reasons I’m here supporting my college.”
Geneva’s lawyer is Greg Baylor, senior counsel at the Alliance Defending Freedom in Washington. He said Geneva is not opposed to its faculty having access to contraception, but he said the college should not have to pay for it.
“If the government can truly set up a system that would be truly separate from Geneva, that would be fine with me,” Baylor said. “The devil’s in the details, of course. Whether something could be truly separate matters a lot.”
Under the ACA, religious groups can sign a statement saying they should be exempt from providing contraceptives. After that, the government works with the insurance plan to provide access to contraceptives at no cost to the employer. The church groups say even signing the letter makes them a part of providing something they disapprove of.
In an earlier challenge on the same issue – the Hobby Lobby case – the court ruled that a closely held company could decide not to provide contraceptives if doing so violated the owners’ religious beliefs.
The Zubik case drew a high number of so-called friend of the court briefs, filed by groups that aren’t parties to the case but have an interest in the outcome: 44 briefs for the religious groups, and 29 in favor of the government’s side.
The court is expected to rule on the case by early summer.
Reach reporter Luke Torrance at email@example.com or 202-408-1494. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire. Like the Scripps Howard Foundation Wire interns on Facebook and follow us on Twitter and Instagram.
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