I asked Stanford law professor Michael McConnell — in my view, one of the two top scholars on the Religion Clauses — for his thoughts about yesterday’s Zubik v. Burwell decision, and he was kind enough to pass them along. (Note that McConnell co-filed a friend-of-the-court brief in this case on behalf of several former Justice Department officials.)

Yesterday, the Supreme Court disposed of the “Little Sisters” contraceptive mandate case, Zubik v. Burwell, with a unanimous per curiam ruling. The Court vacated the lower court decisions against the religious objectors and remanded the cases to the lower courts, stating that the parties should be able to “arrive at an approach going forward that accommodates the petitioners’ religious exercise.” In the meantime, the Court said that “the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.” That may not be a total win for the Little Sisters, but it is awfully close.

1. The order provides welcome relief to religious organizations confronting crippling fines for refusing to violate their religious convictions — but its resolution of the case is nonetheless peculiar and seemingly unprecedented. Parties are under no legal obligation to settle, and when they do not and the courts have jurisdiction, the courts decide the legal merits. I have never heard of an appellate court saying, in effect, “No, we’d prefer not to decide the case. Go back to the lower courts and work it out.” The government must be wondering why it has to work out an accommodation to protect the petitioners’ free exercise when it prevailed in the lower courts, in opinions that have not been reversed on the merits.