RFRA rights revisited: substantial burdens, judicial competence, and the religious nonprofit cases.

Author:Gaylord, Scott W.
Position:Religious Freedom Restoration Act of 1993


The most recent challenge to the free exercise of religion is here. And while it stems from the same legislation that prompted the action in Burwell v. Hobby Lobby Stores, Inc.--the contraception mandate under the Patient Protection and Affordable Care Act (the "ACA")--it raises unique and equally important issues: what constitutes a substantial burden on the exercise of religion, and who gets to decide (the religious adherents or the courts)? In Hobby Lobby, the government contended that for-profit corporations could not exercise religion and, consequently, could not avail themselves of the broad protection afforded to free exercise under the Religious Freedom Restoration Act ("RFRA"). In the seven religious nonprofit cases that the Supreme Court of the United States recently considered and vacated in Zubik v. Burwell, 136 S. Ct. 1557 (2016), the government acknowledged that RFRA applies to religious nonprofits but alleged that the ACA does not substantially burden the free exercise of these religious organizations. In particular, the government argued that the accommodation to the contraception mandate (which permits religious nonprofits to avoid directly providing coverage for all FDA-approved contraceptives and sterilization procedures by giving notice to their insurance issuers or third-party administrators ("TPAs") that the religious organizations object to providing such coverage--the "Accommodation") does not burden, let alone substantially burden, the religious nonprofits' exercise of religion.

Prior to the Supreme Court's decision in Zubik, eight circuit courts of appeals had sided with the government, instructing the religious nonprofits that their sincerely held belief--that the accommodation makes them complicit in a grave moral wrong (i.e., the provision of contraceptives and abortifacients)--was incorrect because the ACA, not any actions by the religious nonprofits, is the legal cause of the insurance issuers' and TPAs' obligation to provide such coverage. Under the majority's "Pontius Pilate" defense, the Accommodation "washes the hands" of religious nonprofits, cleansing them of any legal or moral responsibility for providing the objectionable coverage. As a result, the religious nonprofits cannot meet their burden under RFRA because the Accommodation does not substantially burden their exercise of religion. Only the Eighth Circuit had ruled for the religious nonprofits. In Zubik, however, the Supreme Court vacated seven circuit court opinions favoring the government yet "expresse[d] no view on the merits of the cases." As a result, the circuit courts now have a second chance to consider the scope of free exercise protection under RFRA and whether courts or religious practitioners have the right to determine when government-mandated actions actually contravene sincerely held religious beliefs.

This Article contends that on remand, the circuit majority should join the Eighth Circuit and uphold the right of religious nonprofits to forego the notice required under the Accommodation. Contrary to the majority's claim, Hobby Lobby and Holt v. Hobbs preclude courts from deciding whether the ACA (or any other statute) actually burdens a religious adherent's sincerely held beliefs. Although, as Chief Justice Marshall famously declared, "it is emphatically the province and duty of the judicial department to declare what the law is," courts lack the authority and competence to declare what the religious commitments of a faith are and when those commitments are violated. Under the Court's free exercise precedents, courts can determine only whether the government puts a religious practitioner to the choice of engaging in conduct that violates her beliefs or disobeying the government's policy and facing "serious" consequences. Religious and philosophical questions regarding moral complicity are left to religious adherents, not the courts. As the Founders recognized, religious and moral questions transcend the legal, imposing a different--and higher--obligation on religious believers. For religious adherents, only God (through a religious authority determined in accordance with their sincere religious beliefs) can determine whether an action makes them complicit in sin. Consequently, as the Court explained in Hobby Lobby, "question[s]" about moral complicity are ones "that the federal courts have no business addressing."

TABLE OF CONTENTS ABSTRACT 655 TABLE OF CONTENTS 656 I. INTRODUCTION 658 II. THE RELIGIOUS NONPROFITS' CHALLENGES TO THE ACCOMMODATION TO THE HHS MANDATE 664 A. Overview of the Constitutional and Statutory Frameworks for Free Exercise Claims 670 B. The Circuit Split: Whether the Accommodation Substantially Burdens the Religoius Nonprofits' Exercise of Religion 676 1. The Circuit Court Majority Rejects the Religious Nonprofits' Claims 676 2. The Eighth Circuit's Defense of RFRA Protection for Religious Nonprofits 683 C. Zubik v. Burwell: Remand Without Resolution of the Merits 687 III. THE LOWER COURTS FUNDAMENTALLY MISCONSTRUED RFRA'S SUBSTANTIAL BURDEN ANALYSIS AND, IN THE PROCESS, USURPED THE RIGHT OF RELIGIOUS ADHERENTS TO DETERMINE THEIR OWN VIEWS REGARDING MORAL COMPLICITY 688 A. Religious Beliefs Are Substantially Burdened Under RFRA If the Government Forces an Adherent to Choose Between Complying with a Law That Violates His Religious Beliefs and Facing Serious Penalties If He Follows His Faith 691 B. Deferring to a Religious Adherent's Sincere Beliefs and Claims About What Burdens Those Beliefs Does Not Conflate the Plaintiff's Burdens Under RFRA 702 IV. COURTS LACK THE AUTHORITY AND COMPETENCE TO DECIDE RELIGIOUS AND PHILOSOPHICAL QUESTIONS REGARDING WHICH ACTIONS MAKE RELIGIOUS ADHERENTS COMPLICIT IN WRONGDOING UNDER THEIR FAITHS 709 V. CONCLUSION 713 I. INTRODUCTION

In the wake of Employment Division, Department of Human Resources of Oregon v. Smith, (1) Congress passed the Religious Freedom Restoration Act ("RFRA") "to provide very broad protection for religious liberty." (2) In fact, the Supreme Court has acknowledged that RFRA "provide[s] greater protection for religious exercise than is available under the First Amendment." (3) As a result, plaintiffs claiming that a federal statute or policy violates their religious beliefs typically rely on RFRA or its sister statute, the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), which "imposes the same general test as RFRA but on a more limited category of governmental actions," (4) instead of the Free Exercise Clause. (5) To secure the "expansive protection for religious liberty" under RFRA and RLUIPA, though, plaintiffs have the initial burden of showing both that "the relevant exercise of religion is grounded in a sincerely held religious belief" and that the federal statute or policy "substantially burdened that exercise of religion." (6) If the plaintiff establishes that the federal government substantially burdened its sincerely held religious belief, then the burden shifts to the government to "demonstrate[] 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." (7) If the government meets its burden, then the plaintiff's claim fails; if not, the plaintiff is entitled to an exemption from the statute or policy.

Hobby Lobby is perhaps best known for its resolution of the threshold (and at the time, entirely novel) question: whether for-profit corporations could exercise religion. (8) In its 5-4 decision, the Court ultimately held that corporations could exercise religion because "protecting the free-exercise rights of corporations... protects the religious liberty of the humans who own and control those companies." (9) This holding was important because it meant "a federal regulation's restriction on the activities of a for-profit closely held corporation must comply with RFRA." (10) That is, because corporations were "persons" under RFRA, they were entitled to the "broad protection" that RFRA affords free exercise. (11) But Hobby Lobby does not resolve the central issue in the religious nonprofit cases, because the substantial burden analysis in that case was straightforward. As the majority noted:

If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price--as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would. (12) Similarly, in Holt v. Hobbs, the Court unanimously held that the Arkansas Department of Corrections's grooming policy, which required a Muslim prisoner to shave his beard, substantially burdened his sincerely held religious beliefs: "If petitioner contravenes that policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it substantially burdens his religious exercise." (13) Thus, Hobby Lobby and Holt presented situations in which the Court easily concluded that the government's policies imposed a substantial burden on the free exercise of religion.

The substantial burden analysis has proven to be more difficult--and certainly more contentious--in the religious nonprofit cases. While the government has not challenged the general ability of religious nonprofits to exercise religion (as it did with respect to for-profits in Hobby Lobby), it has argued that the accommodation (the "Accommodation") to the Health and Human Services ("HHS") Mandate does not burden, let alone substantially burden, the free exercise rights of the religious nonprofits. (14) Under the government's view, the ACA imposes a legal obligation on insurance issuers and third-party administrators ("TPAs") to provide the required coverage once a religious nonprofit...

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