The Road to Zubik, Incoherence, and Indecision


Today the Court avoided ruling on the merits in Zubik v. Burwell, a case pitting religious beliefs against government healthcare mandates, by sending the case back down to the lower courts with a per-curiam opinion.  This was one of the most anticipated rulings of the Term and so this decision is perceived as a letdown for those looking forward to more clarity from the Court in this area.  Early commentary on the ruling describes this as a compromise in light of an ideologically split Court and an even number of Justices (Washington Post / New York Times).  How did the Court end up essentially not deciding or “punting” in a case where the country looked to the Court for direction?

Building Up

The Religious Freedom Restoration Act (RFRA) was enacted in 1993 as a Congressional response to the Court’s ruling in Employment Division v. Smith (1990).  In Smith the Court held that neutral laws of general applicability may be applied to religious practices even when not supported by a compelling governmental interest.  With the RFRA Congress replaced the ruling in Smith with a more stringent test requiring a compelling interest as had been the law under prior cases of Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972).  In effect Congress created a wider swath of protection for practices deemed “religious” while it narrowed the space for laws to impinge on these practices.  These beginnings set the stage for the incoherent fallout from the Zubik decision stemming from the Justices’ disparate views on how the RFRA should apply.

The RFRA was actually one of two federal statutes passed in response to the Smith decision.  The other statute, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), similarly set a stricter standard for burdening religion stating: no state or local government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution unless the government shows that the burden furthers a compelling governmental interest and does so by the least restrictive means.

The Supreme Court has heard three cases directly dealing with the RLUIPA: Cutter v. Wilkinson, Sossamon v. Texasand Holt v. Hobbs.  In Cutter a unanimous Court with an opinion written by Justice Ginsburg applied the RLUIPA to uphold a religious protections for prisoners to practice “non-maintream” religions.  In Sossamon, a case dealing with sovereign immunity, the Court in a 6-2 decision written by Justice Thomas held that states could not be sued for damages for violating the RLUIPA. In Holt v. Hobbs, the Court unanimously (in an opinion written by Justice Alito) held that a prison policy forcing inmates to cut their beards contrary to their religious beliefs violated the statute.  In all there were a total of two dissenting votes in these three cases.  Based on this the Court has conveyed a coherent standard for interpreting law and policies under the RLUIPA in a way that differs substantially from RFRA jurisprudence.


The Court has also ruled on three RFRA-based cases prior to Zubik.  These include City of Boerne v. FloresGonzales v. O Centro Espirita, and Burwell v. Hobby Lobby.  In contrast to the religious protections upheld in the RLUIPA cases by a broad coalition of Justices, there has been more dissention among the Justices in the RFRA cases. Boerne v. Flores (1997) was the first post-RFRA case testing to test a law under the new standard.  With an opinion written by Justice Kennedy, the Court in Boerne v. Flores held that it is unconstitutional to apply the RFRA to state regulations.  The Justices voted 6-2 in the case with Justices Kennedy, Rehnquist, Thomas, and Ginsburg in the majority, Justices Stevens and Scalia concurring, and Justices O’Connor and Breyer dissenting.

In Gonzales the Court heard a challenge under the RFRA with facts similar to those in Smith.  Here the Court with an opinion by Chief Justice Roberts reached a unanimous decision that while the RFRA applied, a restriction on drinking hallucinogenic tea for religious purposes was acceptable for health and safety purposes.  While in this area tension among the Justices was not apparent at this point, it soon became clear.

The Court split 5-4 along ideological lines in Burwell v. Hobby Lobby, holding that the RFRA protected religious corporations’ rights to decline subscribing to the contraception mandate of the Affordable Care Act.  With this decision the stage was set for more tension in this area, and potentially a greater shift to the Right.



Then came the unanticipated events of the 2015 Term.  If the Court had the omniscience to foresee the ultimate fate of Zubik, the Justices likely would not have granted cert on November 6th, 2015.  Hindsight, however, is 20/20 and none of the remaining eight Justices could have predicted the untimely death of Justice Scalia.  With the fractious recent legacy of Hobby Lobby, the eight remaining Justices went into oral arguments in Zubik on March 23, 2016.

Not only Scalia’s vote in Hobby Lobby but also his participation in oral argument gave a strong indication of how he would have voted in Zubik.  Take this exchange with the Solicitor General:

JUSTICE SCALIA:  But that wasn’t the basis for — ­­ for denying the claim.  The basis was that the government has to run a uniform system that applies to everybody.


JUSTICE SCALIA:  And you can’t argue that here because the government has made a lot of exemptions.

The remaining Justices positions were relative clear from their talking points in the oral arguments in Zubik.  Justice Kennedy was the only straggler that wasn’t entirely clear in his position (but even his questioning helped give a glimpse of how he might vote).  Take some of the statements from the Justices during the petitioner’s argument (arguing for the religious accommodations):

  • Justice Kagan: “…essentially, the objecting ­­ the difference between objecting to objecting and your clients’ position is not a difference at all with respect to the burden analysis.”
  • Justice Ginsburg: “So as in all things, it can’t be all my way. There has to be an accommodation, and that’s what the government tried to do.”
  • Justice Breyer: “Sometimes when a religious person who’s not a hermit or a monk is a member of society, he does have to accept all kinds of things that are just terrible for him.”
  • Justice Sotomayor: “What I don’t understand, Mr. Clement, is when will any government law that someone claims burdens their practice ever be insubstantial?”

Compare these questions and comments with those from the other Justices during the government’s turn:

  • Justice Kennedy: “Well, then ­­ then it seems to me that that’s a substantial burden. And then and the next question is whether there is an accommodation and whether that’s the least restrictive.”
  • Justice Alito: “you could also ­­ it can also be said that, and it is true, that this is a case in which a great array of religious groups ­­ and it’s not just Catholics and Baptists and Evangelicals, but Orthodox Jews, Muslim groups, the Church of Jesus Christ of the Latter Day Saints, an Indian tribe, the Church of Lukumi Babalu Aye ­­ — have said that this presents an unprecedented threat to religious liberty in this country.”
  • Chief Justice Roberts: “It’s ­­– and we’ve said this in cases like O Centro and others, that if you have a lot of exemptions, it undermines your argument that this is such a compelling interest.”
  • Justice Thomas: “…” [not unexpected I suppose]

It is fairly surmisable from these interactions how the Justices would have come down in Zubik with a nine-member Court.  The unexpected happened with Justice Scalia’s death and the Justices did not seem to know how to regroup.  In what now appears to clearly be a case of indecision among the Justices, the Court ordered the parties in Zubik to file supplemental briefs in a likely attempt to circumvent the outcome that ultimately took place.

But the cues were there.  The Justices were split in their positions in this case.  The parties looked to the Court for a resolution that they could not achieve on their own.  The Justices, however, with their split visions on the proper application of the RFRA to corporations could not reach an accord to settle this case.  The request for supplemental briefing should have been the final signal that there was not going to be immediate resolution of this case with the eight remaining Justices.  This perhaps is the clearest case this Term of ideology trumping the Justices’ desires to reach decisive outcomes with a shorthanded Court.

I still wonder if the remaining members of the Court are acting prudentially with their inaction.  By punting this case they may expect it to come back in the near future to a nine-member Court.  Based on Hobby Lobby and the per-curiam opinion in Zubik, we might expect the newly appointed Justice to be the swing vote in this case.  Strategically-minded Justices should be aware of this.  Depending on the next Supreme Court appointment, the decision to remand could very well end up a poor decision for the Justices in the minority. For instance, if the conservative Justices expect a liberal appointee (like Merrick Garland) to fill Justice Scalia’s seat on the Court, then it may very well have been prudent to accept the narrowest ruling that would have appeased a majority of the Justices in Zubik rather than to let a five Justice majority rule more broadly in the future.

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