What’s Really Wrong With the Decisions in Burwell v. Hobby Lobby and Conestoga Wood v. Burwell?

So the Supreme Court came down with its historic interpretation of the Religious Freedom Restoration Act (RFRA) today in the decisions of Burwell v. Hobby Lobby and Conestoga Wood v. Burwell. In a nutshell, the Court held that religious owners of closely held corporations can use their religious beliefs to determine what medical treatments will be covered by company health plans—without reference to the religious beliefs of the employees. Specifically, female employees can be denied coverage for contraception—either some or all (depending on the particular religious beliefs of the employer)—because the employer doesn’t believe anyone should use it, and does not want to have to pay into a plan where women might make a choice to use it, say, after they were raped.

It is simply a fact that five male Catholic Supreme Court Justices have now transformed what is already a bad law into a truly dangerous one, all for the apparent purpose of undermining women’s access to contraception. Whatever the legal reasoning, the optics are very bad on this one, and whether intentionally or not, they stoke the perception that the Justices are in league with the Catholic bishops in the latter’s attempt to turn the clock back on not just Roe v. Wade but also Griswold v. Connecticut, as Leslie Griffin argues here.

The One Refreshing Moment in the Majority’s Opinion

The majority decision, written by Justice Samuel Alito, along with Justice Anthony Kennedy’s concurrence, are peppered with attempts to limit the decision to contraception and women, which is ugly enough, but these attempts to limit its actual impact are unpersuasive if one understands the law. This is, in fact, a sly opinion that not only delivers free exercise rights to for-profit corporations without meaningful consideration of the impact on their employees but also renders an interpretation of key elements of RFRA that render it a mightier sword than it ever was. RFRA’s ugly underbelly and its pretense to reflect the First Amendment are now in full view.

Yet, the Court did us all a favor by explicitly stating that RFRA does not restore the First Amendment’s doctrine, but is more extreme. Under RFRA, a believer must prove that a law imposes a “substantial burden” on religious conduct. If the believer succeeds, then the burden shifts to the government to prove that the law serves a “compelling interest” through “the least restrictive means.”

As I show here, this was never the Supreme Court’s First Amendment standard, which means that the word “Restoration” in the title of the Act is actually a misrepresentation. More accurate would be: Religious Freedom Power Grab Act, or RFPGA.

In a refreshing moment in the religious culture wars, the Supreme Court today did make explicit that this was never its standard and that RFRA goes well beyond its First Amendment cases, in footnote 3 and the accompanying text. Thank you, to the Court, for at least that truthfulness. We can now rid this debate of those who keep trying to dress this RFRA wolf in sheep’s clothing with statements like, RFRA merely codified what has been “the law for 50 years.” No, this has been the law for a few years, and it has been a bad law that is driving our culture to unprecedented discord and Balkanization. The United States’ successful, long-honored balance between religious freedom and the rule of law was displaced by RFRA, which invites religious adherents to demand a right not only to believe and practice but also to impose their beliefs on others.

A Psychic, De Minimis Burden Becomes a Substantial Burden

Before today, “substantial burden” placed a meaningful burden of proof on a believer. It was a threshold requirement that kept some sanity in the free exercise universe. Unfortunately, in this decision, the majority finds a “substantial” burden where the burden is at most indirect, and decidedly attenuated. The Court characterizes it, saying the company owners must “arrange for such coverage,” which requires them to “engage in conduct that seriously violates their religious beliefs.” In other words, the mere arranging for coverage—which they themselves will never use, and will never know if their employees use it (due to the federal health privacy laws)—imposes a burden. This is not just a small burden but a substantial one. This makes absolutely no sense unless one counts psychic, speculative burdens on liberty as substantial. Before today, such arguments at the Supreme Court were nonstarters.

But the Court goes on to say that if the companies do not comply, there are hefty fines and taxes. Those apparently are truly substantial from the Court’s view (though Hobby Lobby has gross profits of billions of dollars per year, a fact the Court fails to acknowledge). The Court refuses to consider the amici’s arguments that the numbers were not what the believers say they are, and faults the government for not making those “intensely empirical” arguments itself. In short, it defers to the beleivers’ math and rejects everyone else’s. So RFRA renders a win on “substantial burden” because the government did not offer enough empirical evidence to justify its policy choice.

If it sounds like this element of RFRA is being employed to make the Supreme Court a super-legislature, it is. That is one of the reasons RFRA violates the separation of powers, as I explain in my amicus brief, which is an issue the Court does not address.

The Least Restrictive Means Becomes “Anyone Else Should Have to Pay”

The least restrictive means test was never adopted by the Supreme Court in its free exercise cases. In fact, a church attempted to persuade the Court that was the standard, but failed abysmally five months before RFRA was passed in Church of Lukumi Babalu Aye v. City of Hialeah. Still, it is the test in RFRA, and the Court here, acknowledging that it is “exceptionally demanding,” took it in a new, extreme direction.

The least restrictive means is the means that will least burden this believer and still serve the government’s compelling interest. So Hobby Lobby and Conestoga Wood say that they are burdened by having to subsidize contraception for their female employees. What would be less restrictive? Well, in a world of common sense, that answer would be that it’s not even a burden anyway, as I discuss above, but let’s pretend with the Court that the law does impose a substantial burden. What would lessen it?

Aha!! Let someone else pay for it! There are three options, according to the Court. First, the government. The Court actually says that the government has not proven that the cost of providing contraception itself would not be feasible. The government, rightly in my view, responded in briefing to such an argument with “RFRA cannot be used to require creation of entirely new programs.” Not so, says the Court. The Affordable Care Act costs $1.3 trillion, so what’s a little additional cost for paying for women’s contraception? Apparently, if the burden on the believer is financial, the answer is for the government (aka taxpayers) to alleviate that burden by paying instead.

Second, the employees. Because the government would have to enact legislation to realize the first option, and that is not guaranteed with a Republican House, another option is that women will get stuck paying for their own contraception. The quirk here is that if their religious beliefs require responsible family planning or emergency contraception following a rape, that does not matter. Only the employers’ beliefs matter.

Third, the insurance companies. The Court points to the accommodation already in place for nonprofit religious organizations: They can “self-certify that [they] oppose[] providing coverage for particular contraceptive services,” leaving a third-party insurance company to pay for the coverage. In other words, because the government had offered an accommodation to nonprofit religious entities, that same accommodation should be offered to for-profit entities. Yes, that is less restrictive on the for-profit corporations, no doubt.

In short, let anyone pay but Hobby Lobby and Conestoga Wood, whose employees likely don’t even share the same beliefs on contraception. So much for a net win for religious liberty. It’s a win for religious oppression, though.

The Future of RFRA

This decision reveals RFRA in all its subversive and ugly glory. It empowers the powerful at the expense of the vulnerable. It invites believers to impose their beliefs on others. It is a weapon.

Justice Ginsburg is correct that the majority provided a “decision of startling breadth,” possibly applying to “employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others).”

The tide in favor of RFRA has turned, though, with the progressive groups that supported the religious groups to obtain RFRA’s passage in the first instance awake to RFRA’s inherent dangers. It is heartening to see the likes of the ACLU and Americans United for Separation of Church and State and Planned Parenthood taking a stand against extreme religious liberty. And they are now joined by gay rights groups and children’s advocates who deeply understand the harm that can be done in the name of religion.

RFRA should be repealed before we further test the limits of the insatiable demands for religious liberty at the expense of too many others.