Religious Liberty and Congressional Maps

In my original Conservative's Guide to the Supreme Court, I selected nine cases to cover because of their importance to substantive public policy issues that conservatives care about, such as religious liberty, mandatory union dues, and Fourth Amendment protections against unreasonable searches and seizures.  Since then, four of these cases have been decided, while five are still awaiting decisions.  With only a little over a month to go in this Supreme Court term, these decisions should be coming soon.  I'll be sure to update you when they do.

The latest two cases are below.  The first deals with religious liberty and the plight of the Little Sisters of the Poor.  This case is particularly important to me, because I filed an amicus brief before the Supreme Court in support of the nuns' view.  As you'll see, the outcome is a victory for the nuns who will no longer face crushing fines from the federal government, but we still have a lot of work to do to protect the religious liberty of all Americans. 

Zubik v. Burwell

Last week, the Supreme Court issued a remarkable three page opinion in the Little Sisters of the Poor case (Zubik v. Burwell).  The case deals with whether the government would violate the Religious Freedom Restoration Act by using Obamacare to force religious organizations’ healthcare plans to provide contraceptive coverage.  The amicus brief I filed in this case that contended the government should not be permitted to hijack nuns’ healthcare plans.

At oral argument, the justices were very interested in the “hijacking” angle.  Probably worried about deadlocking 4-4, the justices asked the parties whether it would be possible to orchestrate contraceptive coverage for all (what the government wanted) without hijacking and using the religious organizations’ healthcare plans themselves.  The government tentatively conceded that this may be possible.

As a result, the Court issued a very unusual non-decision: it effectively ordered the parties to settle the case along those lines.  The Court instructed the government to work on options for providing contraceptive coverage through health insurance other than the nuns’ own plans.  Meanwhile, it withheld any ruling on the merits of the nuns’ religious freedom claims.

In the end, the expected compromise that ends this case is a victory for the nuns.  They will not face crushing government fines based on their religious views.  Nor will their plans directly be hijacked by the government, so they should not feel complicit in providing contraception.  On the other hand, the likely outcome is that the administrative state will just grow another new tentacle—it will go around the nuns to attain the goals of Obamacare.  And no precedent-setting decision has been made to guide anyone in the future. 

Wittman v. Personhuballah

On Monday, the electoral map drawn by Virginia’s General Assembly died an untimely death in the Supreme Court because Virginia’s Attorney General refused to defend it.  The lower court had scrapped the legislature’s 2013 map and replaced it with one of its own.  The Supreme Court heard argument in this case to determine whether the General Assembly properly redrew the Commonwealth’s electoral map, or whether it impermissibly relied on factors like race.  But the Supreme Court unanimously decided not to answer that question.  Instead, the Supreme Court dismissed the case because Mark Herring refused to defend the map and no one else had a sufficient legal stake to defend it.

After Mark Herring decided not to appeal the lower court’s decision (which heavily favored Democrats),  several Virginia Congressmen intervened to defend the law.  But the Supreme Court decided that none of them had “standing,” which is an implicit constitutional requirement for every lawsuit.  The Supreme Court reasoned that there wasn’t enough evidence that reinstating the General Assembly’s map would help the Congressmen win reelection, so none of them had sufficient legal interests at stake.

Since no party defending the General Assembly’s map had standing, the Supreme Court held that it could not decide whether the map was proper.  Justice Alito accurately predicted the problem at argument, which I covered in a previous update:  If a state Attorney General decides “not to defend the legality of a redistricting plan that was adopted by the legislature,” even if “that decision was made purely for partisan reasons,” then no one else can.  That’s why Virginia needs a new lawyer, not another politician.