Home / General / 8 CA Grants Stay Based On Free Exercise Argument That Is Still Terrible

8 CA Grants Stay Based On Free Exercise Argument That Is Still Terrible


I’m not sure how seriously they’re taking the appeal, but it’s still cause for concern. In light of Oregon v. Smith, the argument that the contraceptive mandate violates the First Amendment should be laughed out of court, but in a context in which ad hoc arguments that the PPACA violated the commerce clause could get 5 votes from the Supreme Court all bets are off. And the fact that Scalia wrote Smith guarantees nothing — as NFIB v. Sebelius showed, he’s not going to consider himself bound by his previous holdings in landmark cases or anything.

…a commenter argues that the real argument will be based on the Religious Freedom Restoration Act. I don’t think this actually works, because although RFRA might apply the old Sherbert standard to lower federal officials, it’s not obvious to me that it should be seen as applying to future legislative enactments — it seems to me that the proper course is to assume that the more recent legislation supersedes the older one. But even if we assume that the Sherbert test should apply, the argument is still utterly frivolous. If the RFRA prevents the application of federal law in this case — which concerns a de minimis burden on religious practice, and indeed would result in a substantial net reduction of religious freedom — I’m not sure what significant federal law you can enforce.

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  • But Oregon v. Smith was about the rights (or lack thereof) of DFHs to engage in forbidden mind-expansion, while the current challenges to the contraception mandate are about right of Yahweh-botherers to impose their standards on everyone else. The difference is key.

  • Anon21

    Well, hold on a minute, I don’t think the primary argument here is even a Free Exercise one; it’s a RFRA argument. And unfortunately, that argument seems far from frivolous to me.

    • Scott Lemieux

      No, it’s still frivolous. Even if the Sherbert test can be applied by Congress to itself, it’s still an easy case. If you read the Sherbert test as making everyone their own conscience and unbound by generally applicable laws, it’s not clear how any federal laws are supposed to work. (No armed forces until Quakers are given an exemption from paying income taxes!)

      • Anon21

        I’ll just say that beyond the conservative/”libertarian” bloggers making plausible arguments to the contrary, Jack Balkin (no foe of contraception he) thinks the RFRA argument is a strong one. Regardless, it means Smith is going to end up being irrelevant to the outcome of this litigation, so you should probably stop citing it as if it settles things.

        • Scott Lemieux

          Jack Balkin (no foe of contraception he) thinks the RFRA argument is a strong one

          I’m going to have to ask for the cite on that one.

          • Anon21

            No cite–it’s just from things he said in class.

            • Scott Lemieux

              Oh. Well, you’ll forgive me if I don’t take your word for your bare assertion.

              In other news, even Robert Bork has said that the argument that the contraception mandate is illegal is completely farcical. I heard him! Or at least it was guy with a goatee.

              • Murc

                Er… to be fair, Scott, if you told us that Robert Bork said that to your face, I’d take you at word unless proven otherwise.

                I’m not sure it is fair to demand someone we have no reason to believe is arguing in bad faith to provide documentary evidence as to a verbal conversation.

              • Anon21

                I mean, obviously it doesn’t matter if you or I are convinced. But your argument here is more asserted than proved. The whole point of the Sherbert test is to protect religious differences, so to say this is a law of general applicability really doesn’t speak to whether it’s valid under RFRA.

                Your argument below (later enactments supersede earlier ones) has more force, but given that this is a regulation and not something mandated by PPACA (unless I’m mistaken), I think RFRA still controls.

                • Scott Lemieux

                  No, the most important argument is that the burden on religious practice in this case is so trivial that if the mandate violates RFRA it’s not clear how the federal government can ever enforce anything.

  • Ted K

    Is Smith actually the precedent that applies in this case? My understanding of Free Exercise law is that Smith set a new test, Congress attempted to overrule that test and return to the old test with the Religious Freedom Restoration Act (RFRA), the Court said that RFRA was unconstitutional with regard to activity by state and local governments in City of Boerne v. Flores, but the Court then found RFRA constitutional with regard to federal activity in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal.

    Thus, the appropriate test would be the RFRA test, which is essentially the Sherbert test: the federal government can’t substantially burden a person’s exercise of religion unless there’s a compelling state interest and the government’s restriction is the least restrictive means of furthering that interest.

    I do think the plaintiff is still a loser under that test; it’s pretty hard to argue that the contraceptive rule is a substantial burden, for one.

    • Scott Lemieux

      RFRA can be constitutionally applied to federal officials, but can it be applied to future legislative enactments? Shouldn’t the more recent legislation be seen as superseding the previous one in the case of a conflict?

      At any rate, as I said even if you apply the Sherbert test the argument is still frivolous. You can’t run a government and have every citizen a conscience unto themselves; this would throw the enforcement of federal law into chaos.

      • Sam Bagenstos

        I think the RFRA argument is problematic myself, though I don’t think it’s frivolous, and the two arguments here don’t exactly move me. RFRA plainly applies to subsequent legislative enactments. See 42 USC 2000bb-3(b) (“Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.”). And it’s a necessary implication of RFRA that to some extent we do get to be a conscience unto ourselves — at least where the federal government is acting in a way that substantially burdens our exercise of religion where it’s not the least restrictive way of serving a compelling interest. The crucial question here, it seems to me, is whether this really is a substantial burden. Professor Gedicks (among others) makes a powerful argument that it’s not. But I think that’s the key question.

  • DrDick

    Frankly, given the ruling in Smith v. Oregon, I do not see how you can even make an effective “free exercise” argument regarding religion.

    • Scott Lemieux

      It’s still possible — you have to show that the law actually targeted religious practice.

      • DrDick

        True, but that does not have much impact in general terms and effectively allows the government to ban your religious practices as long as the law applies equally to everyone. It was a very poorly worded decision with far wider application that I think was actually intended.

    • Joe

      I find the ruling problematic but various aspects of free exercise are retained, particularly if the government is compelling you to practice something. Also, the ministerial exception ruling involves another free exercise component. Targeting religious practice might happen less often, but it does happen, including a case involving ministers not being able to serve in certain roles.

  • Moreover, the contraception mandate would be a particularly bad case for a new exception to Smith, since requiring employers to impose their religious faith on employees who do not share it would result in a net diminution of religious freedom.

    The bolded word should be “allowing,” no?

    • Scott Lemieux

      Yes, will try to correct.

  • dan

    Regardless of the standard, the whole claim requires arguing that an employer’s right to control its employees’ access to contraception is greater than the employees’ rights to secure access to that contraception. This really isn’t that hard under the Sherbert test or any other. Employees have a right to free exercise too. If we invalidate every law that prohibits an employer from imposing religious beliefs on employees, a lot of laws, including Title VII (which prohibits an employer from firing a person for their religious beliefs) would also be unconstitutional.

  • Ugh. I have this horrible and ironic vision of Justice Kennedy citing in a footnote his “Mystery Passage” in a fifth-vote concurring opinion that strikes down the contraception mandate.

  • Kevin

    Didnt this boat sail with the ministerial exception decision? That seemed to conflict with Oregon but Roberts was dismissive of the claim.

    • Scott Lemieux

      Churches qua churches are a different issue that aren’t relevant to this case.

  • dirge

    But when will someone file a suit addressing the real issue: that I’m forced to pay my employees with these “notes,” which are “legal tender for all debts, public and private.”

    The filthy little vermin could be buying all sorts of things that offend my ostensibly protected religious sensibilities. I’m unwillingly complicit in their acquisition of birth control, voodoo dolls, menorah, shellfish, that noise the kids call music these days… limitless abominations.

    Until I can pay my employees in notes that are only valid for products that meet my moral standards, the situation is practically indistinguishable from requiring that I personally participate in their vile orgies.

    • RedSquareBear

      Perhaps you could even set up a store that your workers (because they are yours, after all) would be required to shop at.

      You could even charge them rent for their cubicles.

      • dirge

        Of course I charge them rent for their cubicles. Living there for free would lead to moral turpitude.

    • Please do file an amicus brief. One must make the issues clear.

      • dirge

        I rather wish someone would, as I’m having some difficulty determining the distinction between my authority to decide how people use the healthcare I provide and my authority to decide how people use the paycheck I provide.

        Surely if I can exercise detailed discretion over the one, it follows that I ought to be able to do the same with the other.

  • Rob in Buffalo

    The appellant (employer) argued to the District Court that as a corporation it can “exercise” a religion for purposes of the RFRA based on . . . Citizens United. See p. 9, here. Yay.

    • Hogan

      Holy mother of Cthulhu.

      And since churches are corporations too . . .

  • Rob in Buffalo

    Here is the key part of the District Court Judge Carol Jackson’s decision dismissing O’Brien’s claim under the RFRA:

    “However, the challenged regulations do not demand that plaintiffs alter
    their behavior in a manner that will directly and inevitably prevent plaintiffs from acting
    in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping
    the Sabbath [Sherbert v. Verner], from providing a religious upbringing for his children [Yoder v. Wisconsin], or from participating in a religious ritual such as communion [Gonzales v. O Centro]. Instead, plaintiffs remain free to exercise their
    religion, by not using contraceptives and by discouraging employees from using
    contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs
    will contribute to a group health plan, might, after a series of independent decisions
    by health care providers and patients covered by OIH’s plan, subsidize someone else’s
    participation in an activity that is condemned by plaintiffs’ religion. This Court rejects
    the proposition that requiring indirect financial support of a practice, from which
    plaintiff himself abstains according to his religious principles, constitutes a substantial
    burden on plaintiff’s religious exercise.

    RFRA is a shield, not a sword. It protects individuals from substantial burdens
    on religious exercise that occur when the government coerces action one’s religion
    forbids, or forbids action one’s religion requires; it is not a means to force one’s
    religious practices upon others. RFRA does not protect against the slight burden on
    religious exercise that arises when one’s money circuitously flows to support the
    conduct of other free-exercise-wielding individuals who hold religious beliefs that differ
    from one’s own.”

    Sorry for the long quote but that is pretty persuasive to me.

    • Anon21

      This entirely convinces me, as well. But once you get into the realm of mushy standards like “substantial burden,” it’s hard to find frivolous arguments on either side in a case like this.

  • Joe
  • Anonymous37

    Say Scott, I have a question about the contraception mandate and whether the following will be a point of contention. If I remember correctly, contraception coverage is covered in the health insurance plans without any additional cost; the rationale is that mandating this coverage does not impose any additional cost to the insurance companies. After all, a not-pregnant woman that you’re covering is much cheaper than a pregnant woman that you’re covering, even if you ignore women who require the pill for non-contraceptive health reasons.

    So how does this play into oral arguments? Could it be argued that employers who object to covering contraception don’t have a leg to stand on as they are not paying for contraceptive coverage?

    Let’s say that I was a multi-billionaire and I decided to seek out the highest-profile whiners conscientious objectors to contraceptive coverage, and informed them and their employees that any employee — as long as he or she is paid at least the federally mandated minimum wage — at any of these companies/institutions can come to me and get free contraception. Then I twist the knife by telling any employer who has an employee who took me up on the offer that one of their employees (I wouldn’t say who) is now getting free contraception, because you’re paying that person minimum wage. And I take out ads in the local papers just to humiliate them further.

    Would the employer then be able to argue that the minimum wage laws violate their religious freedom, because it’s leading to their employees being able to get contraception as a direct result?

    As you can tell, I’m not a lawyer, but I wonder if some part of this would be useful to argue before the Supreme Court. Or if I should leave this to the professionals.

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