RFRA Rights Revisited: Substantial Burdens, Judicial Competence, and the Religious Nonprofit Cases

By Gaylord, Scott W. | Missouri Law Review, Summer 2016 | Go to article overview

RFRA Rights Revisited: Substantial Burdens, Judicial Competence, and the Religious Nonprofit Cases


Gaylord, Scott W., Missouri Law Review


ABSTRACT

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. …

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