Free Exercise Arguments Against the Contraceptive Mandate: A Failure On Every Level

The Religious Freedom Restoration Act permits lawsuits against the executive branch if an action “substantially burdens a sincere religious exercise.”  The first problem with using this right against the ACA’s requirement that employers cover contraceptives is that the requirement isn’t a “substantial burden.” As applied to for-profit, secular corporations, there’s the additional problem that there’s no exercise of religion:

Judge Gibbons’s argument is straightforward and compelling. In passing the RFRA, Congress’s explicit intention was to re-establish the Sherbert test that had prevailed before Smith. “While the Supreme Court has recognized the rights of sole proprietors under the Free Exercise Clause [before Smith]”, Gibbons notes, “it has never recognized similar rights on behalf of corporations pursuing secular ends for profit.” Congress cannot have been “restoring” a right for a corporation like Autocam to pursue suits on behalf of its religious rights because such rights have never existed.

Gibbons’s opinion is convincing both on the legislative history and as a matter of logic. As Ian Millhiser of Think Progress puts it, “a religious conservative cannot have it both ways by accepting all the benefits of forming a corporation without also bearing the consequences of that decision.” A mom-and-pop operation or an explicitly religious corporation might have free exercise rights under the First Amendment and/or RFRA, but a for-profit secular corporation cannot (even if some or all of its shareholders share certain religious convictions.)

The terribleness of the arguments against the contraceptive mandate is certainly doesn’t mean that they won’t get five votes from the Supreme Court, of course.