Zubik v. Burwell - Oral Argument - March 23, 2016

Zubik v. Burwell

Media for Zubik v. Burwell

Audio Transcription for Opinion Announcement - May 16, 2016 in Zubik v. Burwell

Audio Transcription for Oral Argument - March 23, 2016 in Zubik v. Burwell

John G. Roberts, Jr.:

We'll hear argument this morning in Case 14-1418, Zubik v.

Burwell, and the consolidated cases. Mr.


Paul D. Clement:

Thank you, Mr. Chief Justice, and may it please the Court: The Little Sisters of the Poor and their co-petitioners face a dilemma that the Religious Freedom Restoration Act does not allow.

They can adhere to their religious beliefs and pay millions of dollars in penalties, or they can take steps that they believe to be religiously and morally objectionable, and that the government deems necessary, for them to provide contraception coverage through their health care plans. Now, the government concedes the sincerity of these religious beliefs, but it attempts to recast them as an objection to the very act of opting out or objecting.

And with all due respect, that is simply and demonstrably not true. The Little --

Sonia Sotomayor:

Could you explain to me the analogy with military objectors during the war? Many of them felt that -- genuine belief; they were pacifists -- that if they registered as pacifists, that that would mean other people would have to serve in their lieu.

They were going to jail, and many of them did go to jail, because of this belief. Why is going to jail less burdensome or less important than paying a financial penalty?

Paul D. Clement:

Oh, I -- I don't think it is, Justice Sotomayor.

But let me stick with the conscientious objector example in the draft context, because I think the way to analyze a conscientious objector case is to say that because they face jail time, there's clearly a substantial burden.

Of course, you get to the second part of the analysis, and you probably would insist on a conscientious objector actually objecting. But I think it's important to distinguish between --

Sonia Sotomayor:

Let's stop there.

Paul D. Clement:


Sonia Sotomayor:

To the extent that a conscientious objector's good faith belief is that, "If I register, someone will serve in my lieu," what burden is it on the government? Meaning, if -- if you're looking at it in terms of strict scrutiny, the government sends out how many notices to people to come and serve? Ten -- you know, 1,000, 1,200.

Do you really think it makes a difference if it knows whether or not one person is not going to show up? And if we're going down that road of what's the difference, why would that law survive?

Paul D. Clement:

I think it would, because I think it would be very difficult to administer that kind of system if either you couldn't even know about the objection or you couldn't take any steps on the government's part to fill the spot. But I think what's critical --

Sonia Sotomayor:

Well, then, isn't that the same thing here? If you don't know who can pay, or who -- who's not eligible, or who's eligible to pay, how does this system work?

Paul D. Clement:

Well, two things, Your Honor. One, this is perhaps the unique government program where the government can provide an exemption without actually requiring somebody to opt out, because that's exactly what they do for the churches, for the integrated auxiliaries, and the religious orders --

Sonia Sotomayor:

The churches have to tell us that their church plans -- have to tell the government their church plans.

Somebody has to tell the government who's eligible or not eligible.

Paul D. Clement:

That --

Sonia Sotomayor:

How is that different from military service?

Paul D. Clement:

Well, first of all, Your Honor, that's just not true with respect to the churches, their integrated auxiliaries, and the religious orders that stick to their knitting and only engage in religious activity.

So factually, there's that distinction. But I think the more important thing, Your Honor, is I would distinguish between the situation where somebody has an objection to opting out because the government's going to take wholly independent steps to find somebody to fill their spot, and a conscientious objector who objects to objecting on a form where the only way they can object is if they list the name of somebody else who's draft-eligible who will then be obligated to serve in their stead.

I would --

Sonia Sotomayor:

Well, but the client, then --

Anthony M. Kennedy:

You -- you -- you began, Mr. Clement, by saying that the government mischaracterizes your position, and I was just not quite sure where that argument was taking us.

You're getting more into the specifics of it now, but could you just begin again there, and --

-- again, what we are talking about? (Laughter.)

Paul D. Clement:

I would be delighted -- delighted to do that, Justice Kennedy. My point was simply that my clients do not object to objecting.