In the March 28 issue of The Weekly Standard, Ilya Shapiro and I published a piece on Zubik v. Burwell based on Cato’s amicus brief in the case. We explain how the Court’s holdings in Hobby Lobby and King v. Burwell provide a way to resolve this case without a fractured battle over RFRA. Here is the introduction:
In what has become a spring tradition, Obamacare returns to the Supreme Court this month, the fourth time in five years. Fortunately for the religious nonprofits challenging the law’s contraceptive mandate—including the Little Sisters of the Poor, a monastic order that cares for impoverished elderly—the results of the Court’s second and third encounters with the act can together answer their prayer for relief.
Two years ago, in Burwell v. Hobby Lobby, the justices ruled 5-4 that the government could not force owners of closely held corporations to provide morally objectionable contraceptives to employees. (Hobby Lobby’s owners believe devices that can prevent the implantation of fertilized eggs, such as morning-after pills and IUDs, violate the Christian prohibition on abortion.) The decision was based on the Religious Freedom Restoration Act (RFRA), which bars the government from imposing a “substantial burden” on religious liberty unless it’s “the least restrictive means” of advancing a “compelling government interest.”
Then last year, in King v. Burwell, the Court refused to defer to the IRS’s reading of the phrase “established by the State” in determining whether Obamacare’s tax credits applied to plans bought through federal, not just state-created, exchanges. Chief Justice John Roberts’s majority opinion declared the bureaucracy lacked the requisite authority and “expertise” to interpret this “central” part of the act. Administrative agencies cannot give themselves the power to answer questions of profound “economic and political significance.” (In its 6-3 decision, the Court found another way to rule in favor of the administration.)
What do these cases have in common? They demonstrate that it’s Congress’s duty to craft delicate religious accommodations to protect conscience. The bureaucracy simply doesn’t have the ability—meaning both authority and know-how—to create legal rules in this area.