On Wednesday, the federal government and the religious-non profits filed their supplemental reply briefs in Zubik v. Burwell, and these are not for the faint of heart. If you like getting down into nasty legal weeds, go for it. If not, you have permission merely to consider the following question.
Why can’t the the non-profits admit that they’ve abandoned — elsewhere I’ve written “caved” on — their critical demand?
Here’s how Solicitor General Donald Verrilli, in his reply brief, describes their change in position: “In a sharp departure, petitioners now acknowledge that they cannot invoke RFRA to prevent the government from requiring that the insurers with which they contract also provide separate contraceptive coverage to their employees.”
In January, petitioners objected to “hiring or maintaining a relationship with any insurance company that is authorized, obligated, or incentivized to deliver the objectionable coverage to Petitioners’ own employees or students in connection with Petitioners’ own health plans, regardless of how that authority, obligation, or incentive is ‘triggered.'”
Now, they say, the government can provide the coverage “independently of petitioners, whether via the Exchanges, Title X, a contract with one meta-insurer, or through truly independent arrangements with petitioners’ commercial insurers.”
What the Supreme Court will have to decide is what constitutes “truly independent.” From the government’s standpoint, it’s enough if the non-profits provide written notice that they don’t want a policy that covers contraceptive services. To this, the non-profits raise a host of procedural objections and demands.
But the crux of the matter is that the non-profits have stopped making the trigger argument. No longer are they claiming that their religious rights are ipso facto violated if the government requires the insurance company they choose to assume the cost of providing the mandated contraceptive services.
So why won’t they admit it?
I’d say it’s because any such admission would be tantamount to admitting that their religious scruples are negotiable. Better to pretend that you’ve not changed your position at all than to allow as how, well, maybe your free exercise rights are not impaired the de facto designation of a contraceptive services provider. It won’t wash.