Ira C. Lupu is the F. Elwood & Eleanor Davis Professor of Law Emeritus, and Robert W. Tuttle is the David R. and Sherry Kirschner Berz Research Professor of Law and Religion, at George Washington University.  They are the co-authors of Secular Government, Religious People (forthcoming, Eerdmans Publishing Co., July 2014).

Two powerful and opposing undercurrents run through the Hobby Lobby case.  The first is the constitutional prohibition on courts resolving questions of religious doctrine.  The second is the constitutionally prudent strategy of interpreting the Religious Freedom Restoration Act (RFRA) to limit the harms that employers may impose upon their employees.

1.  RFRA and questions of religious doctrine

Referencing Sherbert v. Verner and Wisconsin v. Yoder, RFRA commands the government to “not substantially burden a person’s exercise of religion” unless the government can show that imposing the burden is “the least restrictive means of furthering [a] compelling governmental interest.” As Sherbert and Yoder perfectly illustrate, a burden on religion involves conflict between a person’s legal interests and her religious practices.  What is rarely noticed, however, is that the collision of interests must meet two measures of substantiality, not just one.  The conflict must involve, as in Sherbert, the imposition of substantial secular costs on the religiously compliant person.  Less well noticed, the conflict also must involve substantial religious costs for those who comply with secular law. The Yoder Court barely mentioned the five-dollar fine that the state had imposed on the parents of children who did not attend school.  Instead, the Court repeatedly and emphatically stressed the religious cost – a threat to the salvation of Amish parents and to the survival of the Amish community – that might have followed from compliance with compulsory education laws.

This second side of the “substantial burden” formula is deeply troubling.  As reconfirmed by Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the state is constitutionally incompetent to answer questions of religious doctrine, such as who is fit for ministry.  In some situations, of course, the government may choose not to dispute the religious substantiality of the burden. That was the government’s approach, albeit a losing one, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, in which the church claimed that hoasca tea was essential to its worship, and the government conceded that its prohibition on the tea substantially burdened the group’s religious exercise.

In the contraceptive mandate cases, however, the government has not conceded the substantiality of the religious costs of legal compliance. The Hobby Lobby companies assert that the coverage of certain services in an employer-provided health insurance policy will implicate their owners and them in the termination of pre-natal human life.  The government’s response to that argument rests on the remoteness of the connection between the owners’ religious convictions and the independent decision by beneficiaries to make use of insurance coverage of contraceptives. The government argues, in effect, that compliance with the ACA mandate cannot involve the owners of Hobby Lobby in substantial religiously wrongful conduct because the allegedly sinful act – the use of certain contraceptives – is undertaken, if at all, by employees or their dependents who freely choose to take advantage of that coverage. This, the government contends, makes the religious burden of compliance with the ACA attenuated and therefore insubstantial.

How can the Court decide between these competing views of the religious significance of legal compliance? If the state is barred from answering religious questions, the government must accept Hobby Lobby’s assertion about its, or its owners, complicity in sinful acts. Indeed, this view is buttressed by the Supreme Court’s decision in another pre-RFRA Free Exercise case, Thomas v. Review Board of Indiana.  In Thomas, the Court ruled that a member of the Jehovah’s Witnesses had been wrongfully denied unemployment benefits after he refused on religious grounds to work on tank turrets in a steel fabricating plant.  The Court rejected the state’s argument that Thomas’s objection was religiously invalid because other members of the Jehovah’s Witnesses had no religious objection to performing the same work.  Thomas, the Court said, had a constitutional right to draw his own lines about what his religion forbade.  In Hobby Lobby, the plaintiffs (backed by an amicus brief from the U.S. Conference of Catholic Bishops) argue that, like Thomas, employers get to define their own religious beliefs, and are the only competent judges of the religious cost of violating those beliefs.

When incorporated into RFRA, the Thomas rule saves the Court from resolving religious questions by making every RFRA claimant a judge in his own cause.  In the workplace, allowing employers to self-declare the substantiality of the religious burden of legal compliance produces a massive redistribution of legal leverage away from employees and to their employers.   If RFRA operates this way in the workplace, plausible claims for religious exemptions from every federal labor law will soon appear.

2.  Construing RFRA to Limit Third-Party Harms and Avoid Establishment Clause Violations

If the phenomenon of self-declared “substantial burden” is a trap, the Court’s decisions on the First Amendment boundaries of religious accommodations offer the best avenue of escape.   The briefs for Hobby Lobby and Conestoga Woods utterly ignore this line of cases, but an amicus brief by Frederick Gedicks and other church-state scholars has brought these ideas into the center of the conversation.

Most directly on point is Justice Ginsburg’s unanimous opinion in Cutter v. Wilkinson, which charts the path for harmonizing religious accommodations with constitutional concerns about imposing the costs of one party’s religious convictions upon another.  Cutter upheld, against a facial Establishment Clause challenge, the “institutionalized persons” provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA].  Cutter teaches that “[p]roperly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on non-beneficiaries.”  Cutter relied on Estate of Thornton v. Caldor, which invalidated a Connecticut law requiring employers to accommodate their employees’ Sabbath observance.  The Court found that this unyielding preference for the religious needs of some employees would inevitably come at the expense of the employer and/or other employees. The Establishment Clause forbids that kind of coercive transfer.

A few years later, Corporation of Presiding Bishop v. Amos limited the potential scope of Caldor by upholding Title VII’s exemption for religious non-profit employers from the prohibition on religious discrimination in employment.  The Title VII exemption imposes costs on employees, but it is fully defensible in light of 1) the powerful free exercise concerns of religious institutions and 2) expectations of both employers and employees entirely different from those present in profit-making firms like Hobby Lobby.

Creatively synthesizing Caldor and Amos, Justice Ginsburg explained in Cutter that “context matters” in the application of a religious accommodation statute. The “institutionalized persons” provisions of RLUIPA are set in a context where the costs of religious accommodations for prison inmates may fall heavily on the physical security of guards and other prisoners.  Accordingly, Cutter instructs courts to interpret RLUIPA so as not “to elevate accommodation of religious observances over an institution’s need to maintain order and safety.”

Context should matter even more in construing RFRA, which touches all of federal law.  Protecting the religious freedom of employers under RFRA presents a risk of imposing significant costs on employees.  Even before Caldor, the Court had demonstrated its concern for the breadth of legally mandated religious accommodations in the workplace.  In TWA v. Hardison, the Court narrowly construed the duty of employers under Title VII to accommodate employees’ religious practices unless the employer could demonstrate “undue hardship on the conduct of [its] business.”  Recognizing the considerable cost-shifting hazards of that scheme, the Court avoided the Establishment Clause danger by holding that employers could not be required to bear accommodation costs that are beyond de minimis.

When RFRA is invoked within the context of employment relations, the Court should make an identical interpretive move.  As well developed in the Guttmacher Institute’s amicus brief, a RFRA exemption for Hobby Lobby would impose significant costs on female employees and female dependents of employees.  For women who need any of the four pregnancy prevention services to which Hobby Lobby objects, the loss of relevant insurance coverage is a highly focused and expensive harm, especially in emergencies, such as risk of pregnancy from coerced sex. For many women, the most effective and safe contraception is also the most expensive. When the aggravated risk of unwanted pregnancy is combined with the potential out-of-pocket costs incurred by affected women, the harms of a RFRA exemption are far from de minimis.

If Hobby Lobby’s claims prevail, despite these costs, other employer claims under RFRA will be very difficult to deny.  Some current cases involve objections to coverage of all pregnancy prevention services. In the future, others may involve protection of employees with respect to different medical services, collective bargaining, family leave, or invidious discrimination.  Weaving together the threads of Hardison, Caldor, and Cutter, the Court should recognize the government’s “compelling interest” in limiting employers to exemptions that impose no more than de minimis harm on employees.  Employers acting under RFRA, in symmetry with employees asserting rights under Title VII, should not be legally empowered to impose the costs of their own religious observance on others in the workplace.

Posted in Sebelius v. Hobby Lobby Stores, Conestoga Wood Specialties Corp. v. Sebelius, Contraceptive mandate symposium, Everything Else, Featured

Recommended Citation: Ira Lupu and Robert Tuttle, Symposium: Religious questions and saving constructions, SCOTUSblog (Feb. 18, 2014, 11:12 AM), http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/