ADMINISTRATIVE POWER AND RELIGIOUS LIBERTY AT THE SUPREME COURT.

• Author: Rienzi, Mark L.

ABSTRACT

The Supreme Court has recently seen an increase in the number of religious exercise cases in which the conflict was caused by an act of administrative power, rather than an act of legislative power. There are probably several reasons for this increase, including the growth, size, and flexibility of the administrative state, political convenience, and the fact that administrators tend to be specialists who may be unaware of or undervalue competing interests like religious liberty.

While the sheer size, reach, flexibility, and specialization of the administrative state means we will likely continue to see more religious exercise conflicts caused by administrative power--and while there remains a danger of excessive judicial deference to agencies in these cases--in the long run this development can be positive for religious liberty. That is because the same attributes that make the administrative state likely to come into more conflicts with religious exercise (namely size, reach, flexibility, and specialization) also virtually guarantee that administrators will almost always have additional, less burdensome ways of achieving policy goals without burdening religious exercise.

The net result will be more religious exercise cases and, at least in the short run, more courtroom losses for the administrative state. In the longer run, either agencies will learn from these losses and use their size and flexibility to pursue win-win solutions in which they achieve their policy goals while working around religious differences, or they will continue to lose cases and build up a stronger body of Free Exercise and RFRA precedents. There are recent indications that both the Department of Justice and individual agencies are learning this lesson, which suggests that both religious groups and agencies will be better off going forward.

CONTENTS INTRODUCTION I. LEGISLATIVE OR ADMINISTRATIVE? A ROUGH CLASSIFICATION OF THE SUPREME COURT'S RELIGIOUS EXERCISE CASES A. Classifications 1. Reynolds v. United States (1878)--Legislative 2. Pierce v. Society of Sisters (1925)--Legislative 3. Murdoch v. Pennsylvania (1943)- Legislative 4. The Pledge Cases (Gobitis and Barnette) (1940, 1943)-- Administrative (though curiously discussed by the Court as legislative) 5. Prince v. Massachusetts (1944)--Legislative 6. Braunfeld v. Brown (1961)--Legislative 7. Sherbert v. Verner (1963)--Administrative 8. Draft Cases (Seeger, Welsh, and Gillette, 1965-1971)-- Legislative 9. Wisconsin v. Yoder (1972)--Legislative 10. McDaniel v. Paty (1978)--Legislative 11. United States v. Lee (1982)- Legislative 12. Bob Jones University v. United States (1983)--Mixed 13. Tony & Susan Alamo Foundation v. Secretary of Labor (1985)--Mixed 14. Bowen v. Roy (1986)--Mixed 15. Lyng v. Northwest Indian Cemetery Protective Ass'n (1989)--Administrative 16. Employment Division v. Smith (1990)--Administrative (though curiously discussed by the Court as if it were legislative) 17. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)--Legislative 18. City of Boerne v. Flores (1997)--Administrative 19. Gonzales v. O Centro Espirita Beneficente UNI AO do Vegetal (2006)--Legislative 20. Hosanna-Tabor Lutheran Church and School v. EEOC (2012)--Administrative 21. The Contraceptive Mandate Cases (Hobby Lobby (2014) and Zubik (2016))--Administrative 22. Holt v. Hobbs (2015)--Administrative 23. Trinity Lutheran v. Comer (2017)--Administrative/ mixed 24. Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Commission (2018)--Administrative B. Observations: A Significant Increase in Administrative Cases 1. A Shift Toward Administrative Cases 2. An Oddity in the Supreme Court's Discussion of Administrative Cases II. FOUR THEORIES ABOUT THE REASONS FOR THE INCREASE IN ADMINISTRATIVE CASES A. Growth of the Administrative State B. Administrators and Administrative Agencies Tend to be Specialists--but in Areas Other than Religious Liberty C. Politics D. Bias III. ANALYSIS: WHAT CAN WE LEARN FROM RECENT CASES CONCERNING RELIGIOUS LIBERTY AND ADMINISTRATIVE POWER AT THE SUPREME COURT? A. The Conflict Level is Likely to Remain High B. Questions of Deference Are Likely to Take on Increasing Importance C. Agencies Should Often Lose Religious Exercise Cases Under Statutes Like RFRA and RLUIPA D. Agencies Should Often Lose Religious Exercise Cases Under the Free Exercise Clause CONCLUSION: RECONCILING ADMINISTRATIVE POWER AND RELIGIOUS LIBERTY INTRODUCTION

Four years after it was decided, Burwell v. Hobby Lobby Stores, Inc. (1) remains a controversial decision. Critics say this is because the Court took the "unprecedented" step of recognizing that profit-making businesses can engage in religious exercise, thus working a "significant change in religious liberty doctrine." (2) But that claim was always tenuous, given the Court's age-old embrace of constitutional rights for corporate entities, and its repeated protections for First Amendment rights when people or organizations are trying to make money. (3) Indeed, when Hobby Lobby was decided, only two Justices accepted the claim that corporations cannot engage in religious exercise. (4) And four years later, there is still no evidence that this supposedly dramatic departure from prior law has increased the number or type of religious exercise claims, or resulted in secular corporations feigning religion to avoid otherwise valid obligations. (5) Neither the cases before Hobby Lobby nor the developments since Hobby Lobby support the critics' claims about the "unprecedented" and "dangerous" consequences of the case.

Lost in the uproar over corporate rights, however, is an important way in which Hobby Lobby actually is part of a dramatic shift in the type of religious liberty cases heard by the Supreme Court. That dramatic shift has to do not with the question of which corporate form religious families use to run their affairs, but rather with how the government conducts its affairs. For unlike the vast majority of religious exercise cases the Supreme Court has considered over the past century and a half, Hobby Lobby involved a government exercise of administrative power, rather than legislative power. It was not the democratically elected Congress that decided to require employers to provide health insurance coverage for abortion-inducing drugs and devices, but an administrative office (the Health Resources and Services Administration) within an executive agency (the federal Department of Health and Human Services). (6)

Hobby Lobby is not alone. Although most of the Supreme Court's religious exercise cases since 1878 have involved religious burdens imposed by some type of legislative decision, some do involve burdens imposed by unelected administrative agencies. In the first century of the Court's religious exercise case law, these administrative cases were the outliers, and it was mostly majoritarian legislative policies that generated conflicts with religious liberty. The Court's religious exercise jurisprudence was thus developed, for the most part, in cases that prompted the Court to think about the proper relationship between legislative majorities and religious individuals or groups.

More recently, however, the Court's religious exercise docket shows a significant increase in conflicts arising from administrative acts. For example, in 2012 the Court decided Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, (7) which dealt with EEOC's refusal to recognize a "ministerial exception" in discrimination cases. (8) After deciding Hobby Lobby in 2014, the Court decided Holt v. Hobbs (9) in 2015, concerning administrative decisions by prison officials to bar a Muslim prisoner from wearing a religious beard. (10) In 2016, the Court addressed the contraceptive mandate again in yet another administrative case, Zubik v. Burwell. (11) In 2017's Trinity Lutheran Church of Columbia v. Comer, (12) the Court considered whether a Missouri state agency had engaged in illegal discrimination by excluding a religious school from equal participation in a program to fund playground resurfacing. (13) In 2018, the Court decided Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Commission, (14) concerning whether a Colorado agency had improperly discriminated against a religious baker who refused to provide a custom cake for a same-sex wedding. (15)

In every one of these cases, the Court ruled in favor of the religious party. And in every one of these cases, the burden on religious exercise had been imposed and the conflict created by an administrative agency, rather than a legislature.

Administrative agencies, just like legislatures, are part of the government and therefore subject to the same Free Exercise Clause and the same religious liberty statutes as legislatures. For example, when the federal government imposes a substantial burden on a person's religion, that burden is only permissible where the government has used the "least restrictive means" of advancing a "compelling government interest." (16) That analysis applies regardless of whether the burden was imposed by the legislature or an administrative agency because the Religious Freedom Restoration Act (RFRA) applies to all parts of the federal government. (17)

Nevertheless, it is reasonable to wonder how and why religious liberty conflicts generated by administrative actions might differ from conflicts generated by legislative actions. Is one kind more likely to occur than the other? Do judges treat actions by legislatures differently from actions by administrators? Is one kind of conflict easier to resolve than the other? Is the recent shift toward administrative cases at the Supreme Court a positive or negative development for religious liberty doctrine?

With these questions in mind, this Article explores the apparent recent increase in religious exercise cases arising from administrative action. Part II examines the Supreme Court's historical and recent dockets to...