More from Michael McConnell on the supplementary briefing in 'Zubik v. Burwell'

Nuns with Little Sisters of the Poor at the U.S. Supreme Court in March. (Joshua Roberts/Reuters)

Prof. Michael McConnell was kind enough to pass along some further thoughts about the Zubik v. Burwell supplementary briefing, and I wanted to pass them along in turn. (Note that McConnell co-filed a friend-of-the-court brief in this case on behalf of several former Justice Department officials.) Recall that the question here is what exemptions the plaintiffs are entitled to under the Religious Freedom Restoration Act—a federal statute passed in 1993—and not on what they should be entitled to under the free exercise clause, or under first principles of religious freedom.

Zubik gets weirder

The government's position in Zubik v. Burwell, the contraceptive mandate case, just got weirder. It is increasingly difficult to understand why the government has been litigating so long and so hard to force the Little Sisters and other religious organizations to perform acts they regard as contrary to their faith, when it now admits (however grudgingly) that it all was unnecessary.

Shortly after oral argument, in an unusual move, the Supreme Court ordered both sides to submit supplemental briefs addressing a less restrictive alternative to the contraception mandate. The question put the government in a bind. If it answered "yes," it would effectively be admitting to a RFRA violation. But if the government said "no," it would be appearing unwilling to work with the Court on a solution that will satisfy both sides.

What did the government do in its supplemental brief? It hemmed and it hawed. It complained about the question, then it said no, then it said yes, then it spent pages asking the Court to do certain things if it lost.

Meanwhile, the petitioners responded in their first paragraph: "The answer to that question is clear and simple: Yes."

Not a good day for the government.

1. After oral argument, many Court-watchers predicted a 4-4 split, with Justice Kennedy siding with the religious parties. But then came the Court's unusual order. It directed the parties to file supplemental briefs addressing whether there might be a viable compromise: Religious groups would simply "contract to provide health insurance for their employees" while excluding contraception. They would have "no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees." The insurance company would then "separately" provide contraception coverage to the employees—"not paid for by [religious groups] and not provided through the [religious groups'] health plan."

Something must be going on behind the maroon curtains. A 4-4 split would be a victory for the government in almost all the cases. Why explore alternatives unless there are doubts among the pro-government ranks on the Court? And why worry about alternatives unless the Justices are unpersuaded by the government's argument that the mandate imposed no substantial burden on religious exercise to begin with? (That was the basis on which the government won most of the cases in the courts of appeals.)

Most significantly, the order suggests that the Justices are delving into the weeds of regulatory detail. I have always thought that the more you get into the regulatory details, the weaker the government's case begins to look. The Administration's supporters have gotten by on sloppy mischaracterizations of the proposed accommodation—my favorite is that the accommodation only asks the petitioners to "raise their hands" to say they need to be exempted from the mandate. If only it were that simple.

In truth, the conflict is over whether the petitioners can be forced to file forms that the government deems to be authorizations to use their health plan as the infrastructure for the provision of contraceptive coverage. Now, the Court has asked a logical question: Why is it necessary for the petitioners to sign such a thing? Aren't there straightforward ways to provide contraceptive coverage to petitioners' employers (if that is what the government wants) without petitioners' written authorization and without using the infrastructure of their plans?

2. The government begins its supplemental brief with a three-page protest against the Supreme Court's order. It complains that the existing accommodation is already "very similar" to the proposed compromise. It says that the government worked very hard to develop the accommodation ("two rounds of notice and public comment"). And it says that the religious parties shouldn't be offered a compromise because "petitioners have never suggested that an arrangement like the one posited in the Court's order would allay their religious objections." (Never mind that they were never offered such an arrangement.)

Not until page three does the government answer the question: the Court "should not require any change" to the accommodation. That sounds like a "no." The Court's proposal won't work, the government says, because it needs "written notification" of petitioners' religious objections. Why? Two reasons: (1) written notification eliminates the need for the government or the insurer to "verify the employer's sincerity"; and (2) it provides documentation so that the religious employer is not punished "if the insurer fails to provide the required coverage."

But the government later admits that when a religious employer tells its insurance company to exclude religiously objectionable drugs, it is communicating the same message as when it provides a "written notification." So the government already has everything it needs.

The government next belabors the point that the petitioners never requested this particular variant of an accommodation (though they suggested many others). It is not clear what legal significance this may have. The government never suggested this variant either. (In fact, the government never even claimed that it needed the coverage to be "seamless" until the D.C. Circuit offered the idea in the Priests for Life case, several years into the litigation.) Now the Court wants to know if this variant might satisfy the needs of both sides. If either side had proposed this variant before, it would not need to ask.

Aware that its reasons for saying "no" are weak, the government then admits—on page 14!—that the real answer is "yes"—the accommodation "could be modified to operate in the manner posited in the Court's order." Although the insurer's duty to provide contraception coverage "currently arises" only when the employer files a written notice of its objection, the government admits that it could impose "the same legal obligations" without any written notice. This is a clear admission that the government has a less restrictive alternative, which is fatal under the strict scrutiny required by RFRA.

Having thus admitted that there is a less restrictive alternative, the government spends the final section of its brief asking the Court to minimize the damage from an adverse ruling. "Depending on the nature of the defect the Court identifies," the government asks the Court to invalidate only "the relevant aspects of the [self-certification] form," or only "those portions of the regulations that require an employer to provide written notice." Looks like the government is expecting a loss.

3. There has been a lot of confusion and misinformation about the nature of petitioners' objection to the government's self-styled "accommodation." In their supplemental brief, the petitioners make blessedly simple what they are asking for: "so long as the coverage provided through these alternatives is truly independent of petitioners and their plans—i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication—petitioners' RFRA objections would be fully addressed" (page 1). They state that the Court's proposal can meet these criteria. So could a number of other alternatives, all of which provide full coverage for the cost of contraceptives to any of petitioners' employees who desire it.

I continue to think that the best accommodation is to allow petitioners' employees to do what the millions of other Americans without access to employer plans covering contraceptive do: buy a plan from an Obamacare exchange, with the same subsidies everyone else gets. The government has never explained why this is not a sensible solution to this problem.

4. The government descends into incoherence when it turns to the question of "self-insured" health plans—i.e., those where the religious party provides the insurance itself, rather than paying a third-party insurer like Blue Cross. As the government admits, in these situations "there is no insurer" on whom the government can impose the obligation to provide contraceptive coverage (page 16), and there is no legal "mechanism for requiring [administrators of self-insured plans] to provide separate contraceptive coverage without a plan instrument" (page 17).

Interestingly, the Court's order never mentioned self-insured plans. That may be because Solicitor General Verrilli made a significant concession about self-insured church plans at oral argument, admitting that the government lacked authority under ERISA to force the administrators of those plans provide contraception coverage. The government's supplemental brief neither explains nor repudiates that concession.

The government's only substantive discussion of self-insured church plans is relegated to a footnote, in which it acknowledges that even if this category of petitioners were coerced to comply, contrary to conscience, the government still would lack the legal authority to bring about the desired result of providing contraceptive coverage. All the government can say is that the plan administrator might "provide[] separate contraceptive coverage voluntarily, outside the employer's plan" (page 16, n.8). The government does not explain how it could possibly justify heaping enormous penalties on religious entities when compliance would still not achieve the government's objective without the "voluntary" cooperation of church-related entities with no legal obligation to cooperate.

Again, I think the obvious solution is to treat these petitioners the way other churches are treated, the way grandfathered plans are treated, and the way employees of small businesses are treated: to allow employees to purchase coverage on an exchange. It is hard to understand why the government insists that it must compel religiously conscientious employers to participate with it in this program, when so obvious an alternative is available.

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On a highly polarized issue, the Supreme Court deserves credit for seeking a solution that protects the rights of religious parties under RFRA while still accomplishing the government's goal of free access to contraception. The Little Sisters have always said they simply want to be left alone to carry out their good works without violating their religious beliefs. Their supplemental brief proves the point, showing that there is no inherent conflict between their religious beliefs and the government's goals. The government's brief seems to acknowledge the handwriting on the wall. Because it can use a less restrictive means to accomplish its interests, it must.