It is classic Christian theology that "ye cannot serve God and mammon." (1) And yet, there are currently thirty-eight lawsuits pending that make the claim that not only does a for-profit corporation have religious rights, but also that the Patient Protection and Affordable Care Act Women's Health Amendment's contraceptive coverage mandate violates the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment by infringing on for-profit corporations' religious rights.
This Note provides an in-depth look at the specific claims raised by for-profit corporations challenging the contraceptive coverage mandate. Part I will first compare the legal standard under the Religious Freedom Restoration Act with the legal standard under the Free Exercise Clause of the First Amendment, an idiosyncrasy that stems from the Supreme Court's watershed decision of Employment Division, Department of Human Resources of Oregon v. Smith. (2) Part I will also give a brief background on the Patient Protection and Affordable Care Act (ACA), (3) the Women's Health Amendment (WHA), (4) and the contraceptive coverage mandate. (5) Part II will provide a framework for analyzing the decisions issued so far, dividing the relevant arguments into three categories: corporations' religious rights, RFRA, and the Free Exercise Clause. Part II will use those categories as a structure for discussing the courts' analyses of the contraceptive coverage mandate. Lastly, Part III will address the three questions posed by these litigations using the categories developed in Part II, and will suggest that the key to answering these questions lies in recognizing the unrepresented but central interests of a third party in these lawsuits: the employees whose access to contraceptive services hangs in the balance.
Part I will first provide an overview of the Religious Freedom Restoration Act (6) and the Free Exercise Clause legal standards and relevant case law, before covering the background and structural details of the Patient Protection and Affordable Care Act (7) and the Women's Health Amendment. (8)
Current Doctrine of RFRA and the Free Exercise Clause of the First Amendment
The Free Exercise Clause of the First Amendment states that "Congress shall make no law ... prohibiting the free exercise [of religion]." (9) It prohibits federal and state governments from infringing on an individual's ability to engage in religious practices. (10)
When the Supreme Court issued its decision in Employment Division, Department of Human Resources of Oregon v. Smith, (11) the face of Free Exercise jurisprudence changed significantly. (12) Before Smith, the Free Exercise test developed by the Court in the regime-changing (13) cases of Sherbert v. Verner (14) and Wisconsin v. Yoder (15) required a plaintiff to show that the government had imposed a substantial burden on the plaintiff's religion; once the plaintiff showed such a burden, the government then had to show, as an affirmative defense, that it had a compelling interest in imposing that burden and that the burden represented the least restrictive means to achieving the government's objective. (16) In Employment Division, Department of Human Resources of Oregon v. Smith, the Supreme Court announced a new test under the Free Exercise Clause, which consists of asking only whether the law in question is neutral and whether it is generally applicable. (17) As long as the statute is both neutral and generally applicable, a party must comply regardless of the burden on its free exercise of religion. (18) Three years after Smith, Congress responded by passing, almost unanimously, the Religious Freedom Restoration Act, which reestablished the religious exercise test that had existed prior to Smith, as a statutory right rather than a constitutional one. (19)
The Supreme Court's holding in Smith has led to the development of two separate legal claims, and two lines of cases, that address freedom of religion. The first claim is that a law violates RFRA's statutory right. The second claim is that a law fails the post-Smith Free Exercise Clause test. This Note looks at each in turn.
Religious Freedom Restoration Act Jurisprudence
The Religious Freedom Restoration Act specifies the test that a court must apply when reviewing a claim of burden of religion brought under the statute. (20) RFRA states:
(b) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling governmental interest. (21)
Using RFRA, Congress restored "the compelling interest test as set forth in Sherbert v. Verner (22) and Wisconsin v. Yoder (23)" (24) under an independent statutory scheme that "essentially prohibit[s] the enforcement of laws that cannot satisfy pre-Smith standards." (25) The history of RFRA makes clear that Congress intended to codify statutorily only the test articulated in Sherbert and Yoder. (26) RFRA did not codify the results of Sherbert and Yoder, which were anomalies even among cases applying the test they espoused. (27) Understanding RFRA, therefore, entails analyzing these and other pre-Smith cases to determine what qualifies as a "substantial burden," a "compelling interest," and a "least restrictive means."
In order for RFRA to apply, the injured party must first show that there is a substantial burden on the party's exercise of religion. (28) An individual's allegation of religious exercise is sufficient to form the basis of a claim under RFRA. (29) Pre-Smith case law, however, made clear that not every burden on religious exercise will be found to be substantial. While the freedom to believe is absolute, the freedom to act, even pursuant to those beliefs, was "not totally free from legislative restrictions." (30) For example, the Court held that no substantial burden exists when a law operates "to make the practice of ... religious beliefs more expensive" but does not make the practice unlawful; there the Court drew its line. (31) The Court opined that to invalidate laws for incidental burdens on religion would "radically restrict the operating latitude of the legislature." (32)
The outcome in Sherbert relies heavily on the substantial burden analysis. In Sherbert, the Supreme Court held a South Carolina statute unconstitutional because the government was unable to show a compelling interest in burdening a religious adherent by forcing her to choose between (1) following her religion and forfeiting unemployment benefits or (2) abandoning her religion in order to work. (33) The Court found that the disqualification for benefits imposed a burden on Sherbert's free exercise even though the burden was indirect. (34) "The ruling," the Court stated, "forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." (35) The imposition of such a choice was a substantial burden. (36)
The requirement that the burden on religion be...