This article proceeds in three parts. Part I examines the three government concessions that made the Supreme Court’s Zubik decision possible and how those concessions ultimately revealed that it is possible to protect both contraceptive access and religious liberty. Part II discusses how the circuit courts were brought to emphatically adopt positions the government would ultimately abandon under the slightest pressure. Part III concludes with some key lessons lower courts should take from Zubik to better protect the integrity of both the court system and religious-liberty laws.
Mark L. Rienzi, Fool Me Twice: Zubik v. Burwell and the Perils of Judicial Faith in Government Claims, 2016 CATO SUP. CT. REV. 123.