DECIDING NOT TO DECIDE

supreme court II

This article is the kind of material for which this website was created.  That is the juxtaposition of civil law and religious principles.  The Supreme Court of the United States has been neutered, or perhaps emasculated, by the inaction of the United States Senate which refuses to fill the vacancy created by the death of Justice Antonin Scalia.  Today the court is asking the parties in Zubik v. Burwell to file briefs and suggest settlement options. I can recall as a young lawyer going to Court armed to the teeth with facts and precedents and all kinds of policy arguments as to why my client should prevail only to have the judge tell me and the other lawyer to go out in the hall and “settle this case” or else.  I always thought this was because the judge was “overworked” and had too many cases.  But, the this  ruling , however, reveals something even more sinister.  And, that is the unwillingness to decide.  In my cases it was an unwillingness to make the wrong decision and have some appellate judge make mince meat out of you  (the judge that is) .  But, in this case before the Supreme Court it is the fear that after all the argument and all the deliberation the decision will result in a four to four tie.  As citizens you should all be absolutely outraged and demand that any Senator, Republican or Democrat, who has held up action on the President’s nomination  be impeached and removed form office for failing to fulfill their clear constitutional duty to act in order to fill the vacancy on the Court. I can only hope that if Donald Trump is elected he will move with dispatch to fire those ” pathetic looser” ( Trump’s terms not mine) Senators who are actually “obstructing justice” through inaction. I hasten to add waiting for a year to see how the election turns out is like waiting to have your garbage picked up until a election is held to see who will be the next sanitation commissioner.

Justices, Seeking Compromise, Return Contraception Case to Lower Courts

Demonstrators held signs outside the Supreme Court building in Washington on March 23 as the justices heard arguments in the Zubik v. Burwell case .  Credits : Zach Gibson/The New York Times

WASHINGTON — The Supreme Court, in an unsigned unanimous opinion, announced on Monday that it would not rule in a major case on access to contraception, and instructed lower courts to explore whether a compromise was possible.

The ruling was the latest indication that the eight-member Supreme Court is exploring every avenue to avoid 4-to-4 deadlocks, even if the resulting action does not decide the question the justices had agreed to address.

The case, Zubik v. Burwell, No. 14-1418, was brought by religious groups that object to providing insurance coverage for contraception to their female employees.

Less than a week after the case was argued in March, the court issued an unusual unsigned order asking the parties to submit supplemental briefs on a possible compromise. In Monday’s ruling, the court said those briefs suggested that a compromise was possible, but that it should be forged in the lower courts.

“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage,’ ” the court said, quoting from a brief filed by the government.

The Supreme Court urged the lower courts to “allow the parties sufficient time to resolve any outstanding issues between them.”

The justices emphasized that they were deciding nothing.

“The court expresses no view on the merits of the cases,” the opinion said. “In particular, the court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”

Justice Sonia Sotomayor filed a concurrence, which was joined by Justice Ruth Bader Ginsburg, underscoring the limited nature of the court’s action and cautioning lower courts not to read anything into it.

THE WHITE HOUSE REACTION

“Today’s opinion does only what it says it does: ‘affords an opportunity’ for the parties and courts of appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the government’s clarification about what the existing regulations accomplish, how they might be amended and what such an amendment would sacrifice,” Justice Sotomayor wrote. “As enlightened by the parties’ new submissions, the courts of appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.”

The case was the court’s second encounter with the contraception requirement and the fourth time it considered an aspect of the Affordable Care Act. It built on a case from 2014, Burwell v. Hobby Lobby Stores, which said a regulation requiring family-owned corporations to pay for insurance coverage for contraception violated a federal law protecting religious liberty. Justice Samuel A. Alito Jr., writing for the majority in 2014, said there was a better alternative, one the government had offered to nonprofit groups with religious objections.

That alternative, or accommodation, was at issue in the new case. It allowed nonprofit groups like schools and hospitals that were affiliated with religious organizations not to pay for coverage and to avoid fines if they informed their insurers, plan administrators or the government that they wanted an exemption.

Many religious groups around the nation challenged the accommodation, saying that objecting and providing the required information would make them complicit in conduct that violated their faith.

The groups added that they should be entitled to the outright exemption offered to houses of worship like churches, synagogues and mosques. Houses of worship are not subject to the coverage requirement at all and do not have to file any paperwork if they choose not to provide contraception coverage.

At the arguments in March, several justices indicated that they thought the accommodation violated the federal Religious Freedom Restoration Act because it allowed the government to “hijack” the insurance plans of the religious groups that are the petitioners in the case.

Days later, the court called for more briefs in an order that asked the parties to “address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The order sketched out how this might work, asking the two sides to address whether it would be acceptable for the groups to do no more than to buy insurance plans for their workers that do not include contraception coverage.

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