Symposium: Looking forward from the Supreme Court’s important but unsurprising Hobby Lobby decision

Kevin Walsh is an Associate Professor of Law at the University of Richmond School of Law; he was one of the authors of an amicus brief filed on behalf of several Senators in support of Hobby Lobby. 

For those paying close attention to the progression of the Religious Freedom Restoration Act (“RFRA”) challenges to the HHS contraceptive mandate, Burwell v. Hobby Lobby was not a surprising decision.  Unlike last week’s surprisingly unanimous decisions in National Labor Relations Board v. Noel Canning and McCullen v. Coakley, in which unanimity in the outcome was joined with methodological differences that split the Justices in reasoning, Hobby Lobby is a split decision in both outcome and reasoning.  The agreement among the Justices was not as broad; but among those who agreed, the agreements ran deeper.  As a consequence, the law going forward is relatively clear even though the differences among the majority and dissenting Justices are marked.  The decision was about as big a win as the religious liberty claimants here could have hoped for.

RFRA provides that the federal government shall not substantially burden a person’s exercise of religion unless it satisfies strict scrutiny (that is to say, unless the government demonstrates that it has chosen the least restrictive means of accomplishing a compelling government interest).  This is a statutorily self-imposed rule of restraint for the formulation and implementation of federal law that impinges on religious freedom.

For analytic purposes, it is convenient to break down the Hobby Lobby decision on RFRA into three parts: (1) Who can bring a claim under RFRA? (2) How does the “substantial burden” inquiry proceed? (3) How strict is strict scrutiny under RFRA?  In each of these three areas, Justice Alito’s opinion for the Court sets forth an answer and analysis that should ensure greater solicitude for religious liberty in the administrative state.  Federal government lawyers advising agencies on the regulatory implementation of statutory schemes that hold the potential to impinge on religious freedom should take three clear lessons from Hobby Lobby: (1) The Supreme Court will enforce RFRA’s comprehensive coverage as broadly as its capacious text reaches; (2) the “substantial burden” trigger for RFRA’s protections should be understood from the point of view of the sincere religious believer asserting a burden, with no “attenuation” escape hatch allowing legal recharacterization of these beliefs by government lawyers or federal courts; and (3) strict scrutiny under RFRA really is strict.

With the benefit of hindsight and in light of the resulting decision, the Obama administration’s regulatory and litigation strategy for the contraceptives mandate was plainly not pitched in a way that would optimize the administration’s chances for success in the Supreme Court.  In the lower courts and in the initial round of Supreme Court briefing, the administration placed almost all of its chips in the first (“who is protected by RFRA”) category, arguing that for-profit corporations categorically were not protected by, and could not assert a claim under, RFRA.  This administration interpretation ultimately garnered only two votes (from Justice Ginsburg and Justice Sotomayor).  A solid five-Justice majority decisively dispatched it, while Justice Breyer and Justice Kagan reserved the issue (implicitly, at least, rejecting a categorical “no RFRA for for-profits” understanding).

The Supreme Court’s broad understanding of RFRA’s comprehensive coverage is important for all manner of federal regulatory schemes going forward.  Some have expressed worry that this renewed recognition of RFRA’s broad reach will open the courthouse doors to new religious liberty claims that undermine longstanding statutory schemes now taken for granted.  The response to this worry is at least three-fold.  First, RFRA itself is nothing new; the same claims available this week were legally available last week and for the previous twenty-plus years, yet chaos has not ensued.  Second, RFRA is a statute; Congress can legislate around it. And third, RFRA does not make religious liberty a trump; it’s more like a pair of aces in the hole (although the government always knows what those cards are).

While the Supreme Court’s refusal to narrow RFRA’s broad reach is noteworthy and should be a source of relief to those worried about the place of religious liberty in the federal administrative state, it is not the aspect of Hobby Lobby of most immediate going-forward importance.  The bigger issue for the next wave of HHS mandate cases is the Court’s reasoning regarding RFRA’s “substantial burden” requirement.  This requirement supplies the administration’s primary line of defense to the RFRA challenges brought by nonexempt religious nonprofits eligible for a modified version of the mandate.  Under this “accommodation,” certain nonexempt religious nonprofits can comply with the HHS mandate even while purporting to exclude objectionable coverage from their plans by executing and delivering a government form that, in the Administration’s understanding, places greater distance between the health benefits plan offered by the employer and the provision of contraceptive drugs and devices.

The principal difficulty posed by Hobby Lobby for the administration’s defense of this modified means of compliance with the mandate is the Supreme Court’s rejection of the administration’s “attenuation” approach to analysis of RFRA’s “substantial burden” requirement.  In Justice Alito’s words, the administration’s “main argument” on substantial burden was that “the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated.”  The Court described this attenuation argument as an unjustified attempt to examine the reasonableness of the religious belief at issue:  “This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable).”  The Court then reasoned that the federal courts have no business engaging in such an investigation.  (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine … the plausibility of a religious claim.”)  Judicial inquiry should ask “whether the line drawn reflects an honest conviction.”  Because there was no dispute on the answer to that question, and the financial consequences for the claimants for violating their religious beliefs were severe, the Court had little difficulty concluding that the mandate imposed a “substantial burden” within the meaning of RFRA:  “Because the contraceptive mandate forces them [i.e. the religious liberty claimants] to pay an enormous sum of money … if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.”

This mode of analysis does not leave much maneuvering room for the government in defending its modified mandate for nonexempt religious nonprofits.  The principal point of contention in those cases has been how to understand the moral and legal significance of the modified means of compliance with the mandate offered to certain nonexempt religious nonprofits.  Hobby Lobby makes clear that this is to be understood from the point of sincere religious believers rather than of government lawyers and administration apologists.

Some early speculation about the impact of Hobby Lobby on the nonexempt nonprofit challenges has centered on the Court’s understanding of the “accommodation” as a less restrictive alternative in its application of strict scrutiny.  Importantly, the Court explicitly declined to decide whether this modified version of the mandate complies with RFRA for all purposes.  And even more importantly, the Court spent over two pages rejecting the administration’s argument that a new program under which the Government would assume the cost of providing contraceptives could not be considered as a less restrictive alternative under RFRA.

As with any big Supreme Court decision by a closely divided Court, the footnotes contain helpful material for discerning a more detailed understanding of the Justices’ reasoning. There are several noteworthy footnotes in Justice Alito’s opinion for the Court. Footnote 9 reveals the Court’s awareness of the difference between a clean opt-out for religious nonprofits and an opt-out using the government’s required form.  Footnote 37 answers the “third-party burden” argument initially advanced by academic amici and later adopted by the administration. And footnote 41 provides a one-two combination, answering a dissent argument by appropriating an administration argument from a different pending religious exemption case.

There is more to pore over, parse, and prognosticate about. But in the end, Burwell v. Hobby Lobby came out largely as most predicted (some publicly, some privately, many hopefully, many fearfully, few dispassionately).  As a matter of basic administrative law, HHS and the other implementing agencies were statutorily required to craft their regulatory scheme in compliance with both the Affordable Care Act and the Religious Freedom Restoration Act.  Based on a mistaken view about the scope of RFRA’s coverage, the administration not only failed to comply with RFRA, but did not even try. The executive’s broad attempted exclusion was met with a broad judicial response, providing not only an inclusive understanding of RFRA’s coverage, but also a simplified understanding of “substantial burden” analysis and a strict version of strict scrutiny.