They say that hard cases make bad law. It’s no less true that bad law makes hard cases. On March 23, in Zubik v. Burwell, the Supreme Court will face hard—indeed, well-nigh impossible—choices because of a bad law. The law is the Religious Freedom Restoration Act (RFRA). Caught in the ill-focused crosshairs of RFRA will be the fate of Obamacare’s contraception mandate. Targeting that mandate will be a host of religious plaintiffs, great and little, rich and poor.
Passed by Congress in 1993, RFRA requires courts to look skeptically—very skeptically—at any federal law that “may substantially burden a person’s free exercise of religion,” even if that law has no direct connection to religion (say, for instance, a law generally prohibiting the use of hallucinogenic drugs).
RFRA was a response to the Supreme Court’s 1990 ruling in Employment Division v. Smith that where a regulation burdens religious freedom only incidentally—that is, where the burden is a secondary effect of a regulation that is neutral and generally applicable, restricting secular and religious activity alike—the courts will presume its constitutionality.
Under RFRA’s “strict scrutiny” standard, this presumption is reversed. Courts must strike down any substantially burdensome legislation unless the government can demonstrate that 1) the law “is in furtherance of a compelling governmental interest,” and 2) “is the least restrictive means of furthering that compelling governmental interest.”
Not any burden will do. The burden has to be substantial. Which brings us to, as they say, the rub. What is a substantial burden? Who gets to decide whether a person’s free exercise of religion has been substantially burdened? Or, to frame the question as the Zubik Court will have to consider: How is the Supreme Court supposed to decide whether submitting a notification of exemption from Obamacare’s contraception mandate substantially burdens the religious exercise of such groups as the Little Sisters of the Poor (and their many co-plaintiffs)?
Under the regulations that implement the Affordable Care Act (or Obamacare), most large employers are required to include contraceptive coverage in the healthcare benefits plans of their employees. There is a complete exemption for “religious employers,” but government regulators work in mysterious ways, and groups like the Little Sisters of the Poor are not included in this designation. (Basically, the “religious employer” exemption applies to churches. It was a reluctant regulatory nod to the painfully obvious fact that the contraception mandate does not sit well with religious entities. Curiously, though, the designation “religious employer” is not limited to churches that actually do object to providing contraceptive coverage.) The complete exemption means, in effect, that an employer, without taking any action or making any notification, need not comply with the contraception mandate.
Some nonexempt religious groups—and this includes all of the plaintiffs in Zubik—have been given a kind of bypass accommodation. To avoid noncompliance with the contraception mandate and the substantial financial penalties that would accompany noncompliance, a nonexempt religious group must notify the Department of Health and Human Services that it has a religious objection to providing contraceptive coverage as a healthcare benefit.
There is another twist. (Actually, there are a great many twists in the way the law works. My colleague Marty Lederman has been systematically untwisting them on his Zubik-related Balkinization blogs.) In its notification, a nonexempt religious group must also include certain information regarding its medical insurance plan. With this information in hand, the government itself will notify the employer’s insurer that it (the insurer) is now responsible for providing contraceptive coverage to the beneficiaries of the employer’s plan.
In this way, the Obamacare regulations create a kind of moral circuit-breaker between the employer and the provision of contraceptive coverage. Or so the government thinks.
The Little Sisters do not think so, however. They think—they believe—that the notification accommodation triggers, if not the direct provision of contraceptive coverage, the same kind of moral complicity and culpability that would be incurred by the direct provision of contraceptive coverage.
Now, in the law, there are all kinds of burdens on religious exercise. At one end of the spectrum is any governmental action that might impose a financial burden—say, a fine or the loss of a legal entitlement—for noncompliance. This is, we might say, the “classic” burden. Think of James Madison’s 1785 remonstrance against religious assessments: “Who does not see that the same authority . . . which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?” Or Justice Brennan’s echoing language when the Court held that a person could not be denied unemployment benefits because she would not—or, perhaps she would say, could not—seek work on the Sabbath Day of her faith: “Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship” (Sherbert v. Verner, 1963). One way to figure out if there is a substantial burden under RFRA: Follow the money.
In Bowen v. Roy (1986), the plaintiffs faced a dilemma that seems like a dress rehearsal for the Zubik case. They were denied governmental benefits because, for religious reasons, they refused to furnish their state welfare agencies with the Social Security numbers of the members of their household. The Roy Court acknowledged the burden on religious belief caused by the denial of benefits, but it reasoned that the indirect nature of the burden lowered the standard the government must meet to justify its action. Declaring that “[n]ot all burdens on religion are unconstitutional,” the Court vacated the ruling of the district court, which, applying strict scrutiny, had enjoined the denial of benefits. The district court, in the words of Chief Justice Burger, had applied the wrong legal standard:
The Government should not be put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest. Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest.
Of course, it was “rational basis” reasoning like this that prompted Congress to pass RFRA.[1]
At the other end of the burden spectrum are what we might think of as spiritual pressures. The Supreme Court has had occasion to consider—and reject—claims that some form of governmental action, short of a financial penalty, interferes with religious belief. When the federal government allowed a road to be built in a national forest (to support timber harvesting), there was no disputing the fact that the construction “would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples” (Lyng v. Northwest Indian Cemetery Protective Association, 1988).
Well, that was just too bad. Yes, “the challenged Government action would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs.” But no matter how substantial the burden, the Court was not prepared to find that “incidental effects of government programs, which may make it more difficult to practice certain religions . . . require government to bring forward a compelling justification for its otherwise lawful actions.”
Again, the Court was living in a pre-RFRA world.
So why isn’t Zubik an easy case? Doesn’t it fit neatly at the fine-imposing end of the burden spectrum? Certainly, the plaintiffs think so, but the government argues that the Little Sisters et al. are mistaken. They are wrong, the government says, about how the law works. The notification letter, the argument goes, does not trigger the provision of contraceptive services. The problem with this claim is that the Little Sisters et al. believe that the notification letter, in fact, does make them morally complicitous. The fact is that the Little Sisters feel spiritually burdened. And they can’t be mistaken about that.
So, under RFRA, is a burden substantial just because a person genuinely believes that it is substantial? Is this a purely subjective question? In a word, yes. Unless someone can figure out how courts should determine “whether religious beliefs are mistaken or insubstantial” (Burwell v. Hobby Lobby Stores, 2014). In several words, what else can it be?
The word “substantially” was added to RFRA late in the legislative-drafting process, a weak attempt (perhaps at the behest of prison administrators) to forestall an outpouring of insubstantial claims. The word is meant to limit RFRA’s reach. But not to undercut the statute’s core protection of religious freedom.
For a court to say how substantial a burden is, once the plaintiff’s sincerity has been conceded, requires a measure as much theological as legal. The Court has said that “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds” (Hernandez v. Commissioner of the Internal Revenue Service, 1986). But centrality is a mere hairsbreadth away from substantiality. If a plaintiff claims a substantial burden, best for a court to move on. The more straightforward questions (Right!) of compelling interest and least restrictive means await.
If the Little Sisters and their fellow plaintiffs win, we may have burdens coming out of the spiritual woodwork, so to speak. “Substantially” will be the adverb that launches a thousand burdensome lawsuits. (Or, to change metaphors, we might say with Justice Ginsburg, dissenting in Hobby Lobby, that [“t]he Court . . . has ventured into a minefield.”) Naturally, the government doesn’t want every law to face heightened scrutiny merely because someone feels burdened somehow.
But don’t blame the Little Sisters and their fellow religious plaintiffs for this state of affairs. Don’t blame the Supreme Court. Blame last-minute legislative drafting. Blame the law of unintended consequences. Blame the promiscuous use of adverbs. Or just blame RFRA. It’s a bad law.
[1] The Roy Court distinguished Sherbert because the unemployment statute at issue there had a “good cause” standard that created a mechanism for individualized exemptions. “If a state creates such a mechanism,” the Court said, “its refusal to extend an exemption to an instance of religious hardship suggests a discriminatory intent.” In such a case, “it was appropriate to require the State to demonstrate a compelling reason for denying the requested exemption.” In Hernandez v. Commissioner of the Internal Revenue Service (1986), the Supreme Court expressed its doubts whether the burden imposed by a deduction disallowance was a substantial one. The burden, suggested the Court, was no different “from that imposed by any public tax or fee.” But the Court did not decide the question, instead moving on to the compelling-interests inquiry.Jeffrey Shulman is Professor of Legal Research and Writing at Georgetown Law. His latest book is The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child by Yale University Press.
