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How To Read RFRA

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Given that the religious freedom claim being advanced by Hobby Lobby seems to be a combination of scientific ignorance and political opportunism, it’s tempting to conclude that their claim should be dismissed as not being based on a sincere religious belief at all. Tempting, but I think wrong. The courts have been reluctant to question the sincerity of religious beliefs (and opposed to making determinations about the centrality of religious belief) when addressing free exercise claims for good reason. Granting that Hobby Lobby is close to the line, this deference is correct.

The better question is whether, assuming arguendo that there is a religious conflict, whether the burden placed on these beliefs is sufficient to trigger heightened scrutiny. The free exercise framework established by RFRA has two parts. The first states that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” This establishes a threshold test; litigants must show that their exercise of religion has been “substantially burdened.” If this threshold is passed, the burden switches to the government to show that the law is in “furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling governmental interest.” Many of you will recognize this as analogous to the strict scrutiny test the federal courts use to evaluate racial classifications under the Fifth and Fourteenth Amendments.  Applied properly, this is an enormously difficult test to pass.

As you can see from Paul Clement at the oral argument, the strategy of the litigants has been to for all practical purposes read the threshold test out of RFRA. Under Clement’s theory, almost any bare assertion of any degree of conflict with religious practice is sufficiently “substantial” to trigger strict scrutiny. For reasons I’ve discussed already, this would be a bad and unworkable way to read the statute.

As Justice Kagan noted:

But, again, Mr. Clement as Justice Ginsburg said, this was a very uncontroversial law. Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative.

This is correct. RFRA passed with almost no opposition from either house of Congress, both of which were controlled by Democrats. The idea that not only did Congress mean to say “trivial” when they enacted “substantial” but that they expected the entire U.S. Code and Code of Federal Regulations to be subject to strict scrutiny based solely on a nearly irrefutable bare assertion of any religious conflict is implausible in the extreme. The alternative proposed by the Solicitor General is a much more sensible and workable reading of the statute:

And so we think the substantial burden analysis has got to be more strenuous than that. It’s got to incorporate principles of attenuation and proximate cause, and that when you think about this case where the requirement is to purchase insurance which enables actions by others, that you’re really closer to the tax situation than to imposing a direct obligation to act.

And, of course, Clement wants an exceptionally undemanding “substantial burden” standard because the burden in this case is so attenuated Hobby Lobby’s claim would have no chance otherwise. A provision that doesn’t force employers to do anything and places the burden for not complying with the law on third parties should not meet the RFRA threshold. The fact that the Hobby Lobby didn’t believe that it was complicit in providing contraception through its insurance until 2012 just draws a line under how insubstantial this burden is. The Court should read RFRA to mean what it says, and if it does so would reject the claim against the contraceptive coverage provision easily.

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