The audacious complaint in this case is against the requirement that such groups sign a short form certifying that they have religious objections to providing coverage for contraceptive services, a copy of which would go to their third-party insurance administrator....That is, the burden upon which the nuns base their claim for religious accommodation was itself a religious accommodation.
The certification requirement, an accommodation fashioned by the Obama administration to bolster the protection of religious exercise without depriving women of an important benefit, does not rise to a substantial burden.
Why didn't Congress simply write an exception to the Religious Freedom Restoration Act into the Affordable Care Act? The government would be home free. It wouldn't even have had to provide the certification work-around to accommodate the conscience of the nuns. The Free Exercise Clause of the Constitution doesn't require relief from burdens imposed by generally applicable laws that were not designed to target religion. The answer to the question is obvious: Congress scarcely squeezed the ACA through and couldn't bear any additional friction in the legislative process. RFRA was left as a source of future litigation, even as Congress made a show of catering to the young women who feel cared for when contraception is an entitlement.
Congress failed to deactivate RFRA, and the Democratic Party shored up power with its "war on women" rhetoric, and the result of those thoroughly political, tactical choices is that these nuns have a little legal ground to stand on.
I'm not perplexed at all.