Messy.

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There Won't Be Any Deal in Obamacare Religion Fight

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Supreme Court's do-over on the question of religious exemptions from the Affordable Care Act’s contraceptive care mandate is bizarre, but it reflects the weirdness of an eight-justice court.

Unable to resolve the question, but unwilling to leave a patchwork of different results in different circuits, the justices told various appeals courts to try again. Most likely, the lower courts will split again, and the issue will come back to the Supreme Court. By then, there might be nine justices to decide it.

QuickTake U.S. Supreme Court

The writing was on the wall for a weird result. After oral arguments, the justices tried to force a compromise by telling lawyers for the government and the religious groups seeking the exemption to engage in further briefing. The court’s goal was to produce a compromise, but when the briefs came in, there was none to be had.

Despite the failure of its initiative, the court patted itself on the back on Monday, saying in a unanimous unsigned opinion that the supplemental briefing had “significantly clarified” the parties’ positions. Significant clarification is in the eye of the beholder, I guess. I actually think the case is more complicated now than it was before the supplemental briefing.

The court then basically told the appellate courts to try to force the federal government and the religious groups to compromise.  “The parties,” said the court, “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.” And the court told the appellate courts to “allow the parties sufficient time to resolve any outstanding issues between them.”

This is wishful thinking. The case arose because some religious organizations want to do everything they can to block the Affordable Care Act's requirement that health insurance plans cover contraceptive care. Their tool was the Religious Freedom Restoration Act, already deployed for this purpose by the Supreme Court in 2014 in the 5-to-4 Hobby Lobby case.

The Catholic organizations in this case employ non-Catholics as part of their social service mission. The Obama administration tried to reach compromise with them by providing that they wouldn’t have to pay for contraceptive care for those employees. All costs would be covered by the organizations’ insurers.

But the Catholic organizations wouldn’t agree to the deal. They raised a range of different claims, and indeed their arguments shifted markedly over the course of litigation. At one time, the central claim was that they objected to filing a form with the government that specified that they wanted the exemption. Now the central claim is that providing for contraceptive care through their existing insurance plans counted as “hijacking” those plans.

The shift demonstrates that the real goal of the organizations is not to take any deal at all. The Obama administration wants employees to get coverage “seamlessly,” that is through their own doctors and insurers. The religious organizations seem unwilling to accept anything other than active disruption. Their reasoning is principled:  they think contraception is immoral and they want to do anything they can to make it harder to get. If they can derail any part of the contraceptive care mandate, they will.

So don’t expect a compromise before the appellate courts. Justice Sonia Sotomayor wrote separately on Monday to clarify that the appeals courts “should not construe" the justices' efforts to forge a compromise as a signal "of where this court stands.” She emphasized the seamlessness requirement.

The point of her concurrence, joined by Justice Ruth Bader Ginsburg, was to tell the appeals courts that had previously held for the government not to soften their stance on the basis of the court’s apparent desire to compromise. She was making it clear that the proposed compromise was a function of the 4-4 court. When the case makes it back to the Supreme Court, there may be a liberal majority. Sotomayor wants to be sure that the liberal side wins this one.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net