Hobby Lobby and the zero-sum game.

• Author: Kovacs, Kathryn E.

ABSTRACT

In a zero-sum game, one person's gain is another person's loss. Some claims under the Religious Freedom Restoration Act present such zero-sum circumstances in that easing the claimant's religious burden increases someone else's burden. This Commentary explores the effect of Burwell v. Hobby Lobby Stores on such zero-sum claims using a paradigmatic example: RFRA claims challenging the Bald and Golden Eagle Protection Act. This inquiry reveals that Hobby Lobby did not open the door for cases involving true zero-sum games, including those under the Eagle Act and some under the anti-discrimination laws. In such cases, granting the requested religious accommodation merely shifts the claimant's burden onto a third party. RFRA provides for easing burdens, not transferring them to others. Hence, even after Hobby Lobby, such zero-sum claims should fail.

1. INTRODUCTION

   No sooner did the Supreme Court decide in Burwell v. Hobby Lobby Stores, Inc., that the contraception coverage requirement in the Affordable Care Act violates the Religious Freedom Restoration Act (RFRA) (1) than the debate about the breadth of the Court's decision commenced. (2) There is no doubt, however, that Hobby Lobby opened the door wider for RFRA claims. (3) The Court broadened the availability of relief under RFRA by extending its coverage to a for-profit entity, (4) deeming the religious burden "substantial" despite breaks in the causal chain between the regulatory requirement and the plaintiffs religious beliefs, (5) insisting that the government's compelling interests relate specifically to the case at hand, (6) and suggesting that the government might be required to pay for less restrictive means of furthering its compelling interests. (7) Hobby Lobby will be seen as an invitation to potential RFRA claimants.

   Some of the RFRA claims that will undoubtedly follow Hobby Lobby will involve zero-sum games. Game theorists define a zero-sum game as "an endeavor in which the net result is zero. For every gain by one side, there is a counterbalancing loss by the other." (8) Some RFRA claims present zero-sum games in that alleviating one person's religious burden necessarily increases someone else's burden. Accommodating an employer's religious preference for hiring certain kinds of people, for example, necessarily deprives other people of jobs.

   How will Hobby Lobby affect RFRA cases involving zero-sum games? I explore this question using a paradigmatic example of a zero-sum RFRA claim: the Bald and Golden Eagle Protection Act (The "Eagle Act"). The Eagle Act criminalizes the taking and possession of eagles without a permit. (9) Because eagles are required for some Native American religious ceremonies, Congress carved out an exemption from the Eagle Act for federally recognized Indian tribes. (10) Such tribal preferences are upheld as political classifications based on the federal government's unique government-to-government relationship with recognized tribes." But eagles are a limited resource; there simply are not enough to satisfy the religious demand. (12) Thus, accommodating one person's religious exercise by permitting him to possess an eagle necessarily burdens someone else's religious exercise by denying her access to that eagle. People who are not members of recognized tribes, but who need eagles for their religious practices, have challenged the Eagle Act under RFRA. Those claims have not succeeded, in part because alleviating such a claimant's religious burden actually shifts the religious burden from the claimant to a tribal member. (13) It's quintessentially a zero-sum game.

   The Eagle Act example highlights a critical limitation of Hobby Lobby, it did not involve zero-sum circumstances. The government and law professors appearing as amicus curiae argued in Hobby Lobby that exempting the company from the contraception coverage requirement would impermissibly shift a burden onto the company's female employees. (14) They saw the case as a zero-sum game. The majority of the Court disagreed, holding that, if Hobby Lobby's religious burden were alleviated, the burden on its female employees would be "precisely zero." (15) According to the Court, Hobby Lobby was not a zero-sum game. Thus, Hobby Lobby did not open the door for RFRA challenges posing zero-sum games.

   That is certainly true of RFRA claims under the Eagle Act in which religion weighs on both sides of the scale. It should be true in any case that presents true zero-sum circumstances, even if the balance is between religious and secular burdens. If the government is involved in allocating a limited resource such that the religious burden eased is equal to the secular burden imposed, granting the requested religious accommodation simply shifts the burden to a third party. RFRA provides for easing religious burdens, not shifting those burdens onto others. Thus, even after Hobby Lobby, all such claims should fail.

2. HOBBY LOBBY

   In Employment Division v. Smith, the Supreme Court departed from its prior strict-scrutiny test, holding that neutral laws of general applicability need not be supported by a compelling governmental interest to survive challenge under the Free Exercise Clause. (16) Thus, the State of Oregon did not violate the First Amendment when it denied unemployment benefits to members of the Native American Church who were fired for engaging in an act that the State considered a crime: using peyote in a religious ceremony. (17) Congress responded to that decision by enacting RFRA. (18) RFRA reestablished, as a matter of statutory law, the pre-Smith Free Exercise Clause test, which Congress believed provided a "workable test for striking sensible balances between religious liberty and competing prior governmental interests." (19) RFRA provides that the government may not "substantially burden" a person's free exercise of religion, "even if the burden results from a rule of general applicability," except if the government proves "that application of the burden to the person ... (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." (20) RFRA applies to all other federal laws unless Congress expressly provides otherwise. (21)

   The plaintiffs in Hobby Lobby challenged a regulation issued under the Patient Protection and Affordable Care Act of 2010 that requires employers to provide health insurance coverage for contraception. (22) Hobby Lobby asserted that providing coverage for four particular kinds of contraception would violate the tenets of its owners' religion. (23) Its RFRA claim succeeded in the Tenth Circuit. (24) A similar claim by Conestoga Wood Specialties failed in the Third Circuit, (25) and the Supreme Court granted certiorari in both cases. (26)

   The government argued, among other things, that granting Hobby Lobby an exemption from the contraception coverage requirement would harm its female employees by denying them the right to receive such services without cost. (27) RFRA, the government said, "cannot properly be interpreted to require relief that would impose burdens on private third parties." (28) Indeed, the government suggested in a footnote that a religious accommodation might impose such a burden on third parties that it violates the Establishment Clause. (29)

   A group of law professors filed an amicus brief elaborating on that argument. "[S]hifting the costs of accommodating a religion from those who practice it to ... identifiable and discrete third parties in the for-profit workplace," they explained, violates the Establishment Clause. (30) Thus, when the Court upheld RFRA's progeny, the Religious Land Use and Institutionalized Persons Act, in Cutter v. Wilkinson, it remarked that "courts must take adequate account of the burdens a requested accommodation may impose on non-beneficiaries." (31) Some religious accommodations impose no burdens on third parties; others distribute the burdens "among a...