That Word “Substantial,” I Do Not Think It Means…

As I’ve argued at some length, the crucial problem with the argument that the contraception mandate violates RFRA is that holding that the mandate constitutes a “substantial burden” is implausible on its face and would quickly lead to absurd results if taken seriously. And yet, the “substantial burden” asserted by the Little Sisters of the Poor in the suit that recently won a temporary stay from the Supreme Court is even less substantial. One distinctive feature of the case is that the Little Sisters of the Poor almost certainly qualify for an exemption as a religious organization. Remarkably, they’re arguing that this exemption is insufficient:

But Mark Rienzi, the lead attorney for the Little Sisters of the Poor, told msnbc Thursday that filling out the form alone was harm enough, even if no contraceptive coverage comes from it. “The form by law authorizes and designates people to [cover] contraception, which the sisters can’t do,” he said. And if it was so meaningless, he said, why was the government insisting they fill out the form in the first place?

“The Little Sisters shouldn’t be told by their government that they have to outsource this, that you have to hand it off and hope that someone else, in this case the Christian Brothers, stands firm against this,” he said, referring to contraceptive coverage.

You read that right: even when granted an exemption, they’re arguing that needing to fill out a form to claim the exemption constitutes a “substantial burden” on their religious practice. To call this argument “absurd” is charitable. It takes the movement to write the “substantial burden” requirement out of RFRA to remarkable lengths.