The following comes from a March 23 Catholic News Agency article by Matt Hadro:
The case Zubik v. Burwell is a combination of seven cases before the Supreme Court against the “accommodation” offered to religious non-profits by the Obama administration regarding its federal contraception mandate. Plaintiffs include the Little Sisters of the Poor, the Archdiocese of Washington, Bishop David Zubik of Pittsburgh, and several Christian colleges.
Paul D. Clement, arguing for the Little Sisters and their fellow petitioners before the court on Wednesday, said this process still demands more than a simple opt-out. It forces the Little Sisters and other religious charities to fill out a form they know will ultimately facilitate access to birth control against their religious beliefs, he said.
The government also enforces this measure with “massive penalties,” he added. The Little Sisters could pay up to $70 million a year in fines if the mandate goes into effect and they do not comply with accommodation.
However, Justice Ruth Bader Ginsburg argued during the hearing, “the insurer or the TPA is then not dealing with the employer at all.” The employer “could say, ‘I fill out the form. I do not authorize. I do not permit. It won’t make any difference’.”
“It makes all the difference, Justice Ginsburg,” Clement countered. “If we don’t provide the form, then the coverage doesn’t flow.”
Justice Sonia Sotomayor responded that tension between laws and the religious beliefs of persons is inevitable, and that if all requests for religious exemption from laws were honored, government actions could not be enforceable.
“Because every believer that’s ever come before us, including the people in the military, are saying that ‘my soul will be damned in some way’,” she said of requests for religious exemptions from laws and actions like a military draft. If that burden will “always” be “substantial,” she added, and all religious exemptions are honored, “how will we ever have a government that functions?”
Aside from a cloistered monk or hermit, Justice Stephen Breyer noted, a “religious person” living in society may “have to accept all kinds of things that are just terrible for him.” Quakers must pay taxes for a war they conscientiously object to, he said. Religious people against blasphemy might not like First Amendment protections of it.
Noel Francisco, also arguing for the plaintiffs, said that religious non-profits should get the same protections as churches, which are exempt from the mandate.
Justice Elena Kagan pressed him on expanding religious exemptions to charities and non-profits.
“I thought there was a very strong tradition in this country, which is that when it comes to religious exercises, churches are special,” she said. If these religious protections are expanded to include “all religious people,” she argued, “then the effect of that is that Congress just decides not to give an exemption at all.”