The Slippery Slope that is Hobby Lobby Is Only One Step

As you may have read, the Supreme Court is taking up the question of contraception coverage under RFRA again.  There are 37 different parties challenging the government regulation in question, and so the factual nature of each claim is slightly different.  But I think each of the challenges share the same fundamental flaw. Specifically, the challenge only can succeed to the extent the Court allows the challengers to the law to phrase their argument as the challengers select, without questioning whether the challengers are really making a different, quite indefensible, argument.  And, for reasons I will explain, I do not think RFRA requires this.

RFRA, the Religious Freedom Restoration Act, is essentially a statutory rule of interpretation.  The Act was designed to overturn a decision of the Supreme Court (written by Scalia) called Employment Division v. Smith.   Scalia, who has a habit of making dire warnings which sometimes comes true (Megan McArdle once joked that Paul Krugman has predicted 8 of the last none recessions, and I think it is fair to say that Scalia has predicted 100 of the last 12 major legal breakdowns), accurately noted that a rule which allowed individuals to "opt out" of generally applicable laws for religious reasons would lead to chaos (citations and emphasis omitted):

"To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' -- permitting him, by virtue of his beliefs, 'to become a law unto himself,' contradicts both constitutional tradition and common sense....

Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because 'we are a cosmopolitan nation made up of people of almost every conceivable religious preference,' and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order."

Unfortunately, Congress ignored this warning and enacted RFRA, which creates a presumption in each law by Congress that the law does not apply in individual instances to the extent it creates a "substantial burden" on an individual's religious rights, unless doing so is "in furtherance of a compelling government interest," and "is the least restrictive means of furthering that compelling governmental interest."

Hobby Lobby, the first contraception case, notoriously extended the right of "individuals" to for-profit corporations, and I do not want to get into the merits of that point here.  But it also did something else.  The language quoted in the statute describing the least-restrictive/compelling interest test from RFRA comes from the language used by courts in pre-Smith law, when there was a First Amendment religious liberty exception to generally-applicable law, but it does not accurately reflect how the Court ruled on those claims.  Instead, the Court applied something more akin to a balancing test, which allowed the Court to generally enforce (taken from Smith itself) compulsory military service, tax law, child neglect law, vaccination law, drug laws, traffic laws, social welfare laws, child labor laws, animal cruelty laws, environmental protection laws, and civil rights laws, even though in almost all of these cases, it's easy to show that the government interest in the law could have been done in a slightly different way, which perhaps might not have "infringed" on the practitioner's religious interests quite so much.  But Hobby Lobby took Congress literally, and untethered the language from the pre-Smith caselaw.  

Further complicating this is how Courts define the burden of religious exercise.  Under the Supreme Court's analysis, other than a sop to sincerity that rarely goes enforced, one cannot question the truth of the individual's religious claims.  To some extent, that's fair:  If someone wants to go to Church to praise Jesus, a Court obviously shouldn't say they have no religious interest because, really, everyone knows that the Flying Spaghetti Monster is the one true God.  Nor should the Court be judging religious doctrine:  If someone thinks their religious interpretation of Judaism allows them to eat pork but not leavened bread on Passover, it's not for Courts to interpret religious doctrine.

But Hobby Lobby went too far in a different way - it allowed the petitioner to not only phrase the religious belief without question, it also allowed no inquiry into the scientific facts as they apply to the religious belief.  In Hobby Lobby, the plaintiffs did not claim that contraceptives qua contraceptives violated their religious beliefs (and, indeed, did not object to all contraceptions).  Rather, they objected to that abortifacients violated their religious beliefs, and providing coverage for certain contraception meant providing abortifacients.  The problem--ignored by the Courts--was that this was false, and that the contraception that Hobby Lobby objected to were, scientifically speaking, not abortifacients.  

Post Hobby Lobby, all a religious objector really has to do to opt out of the contraception coverage is....to opt out (seriously, go look at it).  Specifically, they have to fill out a form stating that they object.  Then, HHS - without involving the objector at all - works individually with the insurer or administrator of the insurance in providing contraceptive coverage for the objector's employees.  But even this scheme has led to another round of challengers.

The new challengers cause a wholly new problem with how the Court unquestioningly allows the petitioner to frame the religious question.  And here, I think, the Court goes too far.

Let's go to the Eighth Circuit decision (the one which found for the challengers, leading to a circuit split):  

"CNS and HCC contend that the government is coercing them to violate their religious beliefs by threatening to impose severe monetary penalties unless they either directly provide coverage for objectionable contraceptives through their group health plans or indirectly provide, trigger, and facilitate that objectionable coverage through the [form] accommodation process."

In other words, they aren't objecting to the form itself, although lazy journalists have used that terminology.  Of course not:  the Catholic Church does not have a prohibition on forms!  Instead, they are objecting to the fact that a) they have a legal obligation to provide unobjectionable health care, which in turn b) allows Congress to arrange objectionable health care for their employees, but c) If they don't provide any health care, they would be on the hook for a big fine, but their employees would remain uncovered.  

Although the law doesn't technically treat the requirement to provide unobjectionable health care as a choice, these challengers are taking advantage of the fact that the side-effect of non-compliance is preventing their employees from getting (objectionable) health care, as well as huge fines.   From their view, Congress is allowing them to decrease the number of people who are provided objectionable health care (by breaking the law), but only at the cost of a huge fine; which in turn, according to the challengers, should allow them to be excused from the law itself.  

One does not have to challenge their religious convictions to look critically at their claim of substantial burden.  The burden they claim is not a burden on themselves.  Rather, they claim a religious freedom right to prevent their employees from obtaining health care coverage from others.  And this is a right that, even under RFRA, cannot stand.  Religious Jews can't claim a religious right to be exempt from anti-theft laws if they decide that nobody should eat pork and therefore go around destroying all the pork.  And a Religious Jewish employer can't go around refusing lunch breaks to their employees because the employees might go to the local BBQ Rib joint on the break.  That's not how democracy *or* freedom works.

And yet, if one has to accept the claim that even providing health care under the ACA at all violates their religious beliefs so long as the net result of compliance is more people covered for contraception, this claim would pass muster, and go up against the Hobby Lobby least-restrictive/compelling interest test, which, when used in other contexts (such as the Equal Protection clause) is almost always fatal to any regulation at all.  

The solution, of course, is to overturn Hobby Lobby's decision to defer entirely to the challenger's characterization of what infringes their religious beliefs, as well as the decision to depart from the pre-Smith meaning of the least-restrictive/compelling interest test.   As soon as we make any inquiry into that characterization, two flaws immediately appear:

1) The employer's interest in seeing that their employees are denied health care can be seen as the real "religious liberty", and we can deny this as a legitimate interest protected by RFRA in the first instance; 

2) There is no "less restrictive" way of the government providing the contraception care in this instance which does not substantially burden the challengers' religious liberty because it is the providing of that care which creates the coverage, and under the challengers' own theory, they would be complicit in any event because the employing of the individual is what creates the coverage in question.

This does not require challenging the employer's fundamental religious conviction that contraception are bad and that the employer should not be required to do anything complicit in providing them.  It instead merely requires that Courts look to see whether the religious interest asserted by their "complicity" is really a "liberty" interest at all.  It also - to a lesser degree - requires a Court to balance the supposed interference with the religious interest with the government's interest generally (not just in providing contraceptive coverage but providing health care) as well as with any proposed alternatives that the objector suggests.  But I think this was what was always done, practically if not explicitly, both in pre-Smith cases and in pre-Hobby Lobby RFRA cases.

The Eighth Circuit opinion, instead, notes that once the government has conceded that the interest is sincere, the Court's inquiry regarding whether the government's action burdens that interest is at an end, because we must take the challengers at their word that their religious interests are being burdened, even though the challengers are often evasive as to what, exactly, burdens their religion.*  It then goes into the least-restrictive/compelling test merely by noting that the government has the burden of proving the lack of any alternative--something that is essentially unprovable.  It should be the burden of the Plaintiff - and the Court - to at least *suggest* an alternative.

The Court lists only one "least restrictive" alternative that the plaintiffs use a different way of opting out (one that does not provide the identity Third-Party Administrator to the government, although my own reading of Form 700 does not indicate this is even required).  Really?  Does the Eighth Circuit really think that the real problem with the notice was that the form asked them who the third party administrator is?  While one could mock the merits of that argument-filling the form out in English instead of Latin does the government a really-unwelcome solid-do you think the challengers would think of themselves as huge victors if they only could refuse to provide that one detail?  And do you think anyone has really won out if the government now has to  bear the costs of discovering this information (imagine the job posting - a Third-Party-Administrator-discoverer!).  It should be worth pointing out that there are cases where other challengers did not have to provide that information, and the Supreme Court decided to hear those cases along with this case.

Again, the case can be easily disposed of once one critically identifies the (sincere) religious objection that is *actually* being made.  The challengers want to deny their employees contraceptive care.  Not being complicit in providing contraceptive care is not the same thing as being permitted to deny others their right to obtain it from a third party.  Otherwise, watch out, because I can destroy your pork.

And, going forward, the Court must either put some limits on how challengers phrase RFRA, or alternatively revisit its decision in Hobby Lobby to treat the least-restrictive/compelling interest test in an essentially-fatal way.  Otherwise, the law becomes subservient to religion generally, with any challenge to government action (civil or criminal) simply be a bare assertion that the action infringes on liberty, which can neither be challenged nor reasonably overcome in almost any instance.

*All that is really said is that they are forced to be "complicit" in providing contraceptive care burdens their religion.  But what "complicit" means is hopelessly vague.