Zubik v. Burwell: Undue burden on SCOTUS?

This week, the Supreme Court declined to resolve the issue presented in Zubik v. Burwell, a case asking whether the needs of religious nonprofit institutions that do not want to provide contraception have been met by an accommodation in the Affordable Care Act, or if they are unduly burdened despite the accommodation made by the government. The Court, missing its ninth justice, most likely decided to send the cases back to avoid the potential for a tie vote.

Jewish organizations contributed briefs on both sides. They argued about what constitutes an undue burden, and who should be granted an exemption.

Amicus briefs supporting the government were filed by both American Jewish Committee and the Anti-Defamation League. 

An amicus brief supporting the religious organizations was filed by the National Jewish Commission on Law and Public Affairs (COLPA), which represents major Orthodox Jewish organizations, including the Orthodox Union, Agudath Israel of America, and the Rabbinical Council of America.

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The Religious Action Center of Reform Judaism issued a statement saying it was “disappointed” that the Court decided not to resolve the “key issues” presented. “As the lower courts rehear these cases, we hope they will conclusively rule for the government, as did the majority of courts before the Supreme Court first took up this case. Women working for religious nonprofits must have access to coverage for full contraceptive care.” 

The ADL objected to the idea that requiring an organization “to write in just four boxes” could ever constitute a true burden, especially given that “the form is itself an accommodation to alleviate religious objections to directly providing contraceptive coverage.” 

AJC called the religious organizations’ argument a “stretch,” because “it would give religious objectors the power not only to say what they sincerely believe (which is unquestionably their right), but also to unilaterally declare when their beliefs have been substantially burdened (which is not).”

COLPA objected to the creation of a distinction between houses of worship, which are exempted from the contraception provision, and both their auxiliary organizations and independent organizations that have a religious function and are governed by religious doctrine, neither of which is exempted.

“Distinguishing between the location where worship takes place (a synagogue or Bet Knesset) and other independent sites which are intrinsically necessary for religious observance (such as a religious school or Bet Medrash) and granting broader latitude for religious freedom to the former than to the latter should be impermissible,” according to COLPA.

It remains to be seen how the Jewish community will respond to whatever compromise is crafted in the lower courts. But one thing is certain: We have not seen the last of these cases, and when they return to the Supreme Court, voting will no longer pose an undue burden; by then, there will likely be a ninth justice who will cast the tie-breaking vote.