Symposium: RFRA post-Hobby Lobby: what now?

O. Carter Snead is the William P. and Hazel B. Director, Notre Dame Center for Ethics and Culture Professor of Law University of Notre Dame.

The Court’s decision in Burwell v. Hobby Lobby Stores supplied much-needed clarity on contested questions regarding the scope and substance of the Religious Freedom Restoration Act (RFRA) as applied to for-profit businesses.  RFRA, which passed the House by voice vote, cleared the Senate by a vote of 97-3, and was signed into law by President Bill Clinton in 1993, provides a careful balancing test that requires – consistent with our nation’s best traditions –federal accommodation of sincerely held religious beliefs except in those rare cases where the challenged state action is the least restrictive means of accomplishing a compelling state interest.  The aim of this contribution is to explore what Hobby Lobby might mean going forward for religious non-profits (such as Catholic universities, hospitals, and social service agencies) seeking relief from the HHS contraceptive mandate.  Before turning to that question, however, it will be necessary to rehearse briefly the Court’s conclusions regarding RFRA’s protections for for-profit enterprises.

First, the Court made clear that faithful individuals do not lose the protections of RFRA simply because they seek to practice their faith with others through a closely held, for-profit business.  Though some people may strenuously disapprove of this result, it follows from the most natural and straightforward reading of RFRA, given both its text and the jurisprudence in which it is situated.  The terms of the statute itself are very broad (e.g., referring to “persons” rather than “natural persons”).  In numerous past cases, the Court has recognized free exercise protections (including under RFRA) for non-profit business associations (e.g., Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal) as well as for individuals engaged in for-profit ventures (e.g., Braunfeld v. Brown).  Moreover, legislative history (as explained in separate amicus briefs authored by Professors Douglas Laycock and Michael McConnell) clearly indicates that both congressional supporters and critics of RFRA understood that it applies to for-profit entities.

Having determined that RFRA applies to closely held for-profit businesses, the Court next concluded that the HHS rule requiring companies such as Hobby Lobby to provide, without cost sharing, drugs and devices that, according to the FDA’s own labeling, might function by causing the death of a living human embryo (by preventing implantation in her mother’s womb) was a “substantial burden” on their exercise of religion.  That is, the mandate forced Hobby Lobby (under pain of tax penalties of up to $1.3 million per day) to act against its religious commitment to the fundamental equality of all human life from conception to natural death.

Assuming (without deciding) that the government’s interest in maximizing women’s access to contraceptives was “compelling,” the Court nevertheless concluded that the mechanism chosen to pursue this end did not constitute the least restrictive means available.  Accordingly, the Court held that the HHS contraceptive mandate, as applied to closely held businesses such as Hobby Lobby violates RFRA.  At the same time, the Court made it clear that RFRA is not an automatic trump card for the faithful against all state action.  Future claims, for example, challenging an essential and uniform government program (e.g., for vaccinations) or brought by an insincere plaintiff (e.g., a for-profit publicly traded corporation fraudulently seeking cost savings) would not prevail under RFRA’s balancing test.

So what, then, does Monday’s decision mean for those religiously affiliated employers who continue to seek relief from the HHS contraceptive mandate?  These institutions are not exempt from the mandate (as are houses of worship), but rather have been extended an “accommodation” whereby they are required to sign and deliver a federal form that both certifies their objection and sets in motion a process in which their insurance company (without issuing a separate policy) must provide plan members with all FDA-approved forms of contraception, sterilization procedures, and patient education and counseling, free of charge.  In the case of self-insured religious non-profits, the self-certification form serves (by operation of the federal rule) as a legally binding directive from the objecting employer to its third-party administrator (TPA) that it must serve as plan administrator for the provision of the objectionable services.  In response to the so-called accommodation, dozens of religious non-profits have asserted claims under RFRA, arguing that the federal rule forces them to facilitate access to instrumentalities that they regard as gravely immoral.  Many religious non-profits have obtained judicial relief; others have not yet been successful.

Does the Court’s decision offer support to these religious non-profits as they continue to challenge the HHS mandate?  At first glance, it would seem not.  In their discussion of the HHS mandate as applied to Hobby Lobby, both Justices Alito and Kennedy suggested that the accommodation extended to non-profits is one possible “less restrictive” mechanism for pursuing the government’s goal of maximizing access to such drugs and devices.  (Of course, the most obvious and straightforward less restrictive means, the Court observed, would be a direct subsidy by the government to those seeking access to uncovered drugs and services.)  Justices Alito and Kennedy also noted that the accommodation is already in place, was devised by HHS itself, and serves the government’s purpose of providing maximal access to contraception.

The foregoing statements would seem to be an ominous sign for religious non-profits that regard the accommodation as a mere shell game that leaves them entangled in the facilitation of objectionable services.   But, to the contrary, a careful reading of these passages in the larger context of the Hobby Lobby decision (and in light of subsequent actions by courts of appeals) offers a great deal of hope to such non-profits.

First, Justice Alito (in passages also cited directly by Justice Kennedy in concurrence) cstated explicitly that the question of RFRA’s application to the accommodation for religious nonprofits was not before the court, and was neither briefed nor argued. Rather, the precise question before the Justices was whether there was a less restrictive means of accomplishing the government’s goals than a simple mandate to provide an insurance policy that directly covers the four objectionable drugs and devices.  Comparing this blunt mandate to the non-profit accommodation yields a clear (if mostly uninteresting) answer:  the latter arrangement (however modest it might be) is obviously less restrictive than the former (which offers nothing by way of relief).  Once a single less restrictive alternative to the direct mandate was identified, the government’s case was doomed under RFRA.  But this finding does not resolve the challenges made by religious non-profits.  “Less restrictive” is not the same as “least restrictive.”

Even more encouraging for religious non-profits is the Court’s discussion of the strong deference owed to the faithful’s judgments about what their religion forbids in terms of complicity in wrongdoing and requires by way of integrity of witness.  The Court pointedly refused to allow the government (or the principal dissent) to substitute its own view of these matters for that of Hobby Lobby, and made clear that the only role for the Court in this context is to confirm that the asserted beliefs are sincerely held.  This signals that the Court is very likely to accept the claims of religious non-profits that the so-called accommodation, in particular the self-certification requirement, coerces them to facilitate immoral activities and impedes their ability to bear authentic witness to the truths that their faith affirms about the dignity of human life and the gift of conjugal love.  Indeed, both Justices Alito and Kennedy cite the Court’s recent order (pending appeal) allowing the Little Sisters of the Poor to opt out of this self-certification process by providing written notice to HHS of their objections rather than to their insurance company or TPA.

In a still more promising sign for religious non-profits, immediately following Hobby Lobby, the Court (over the dissent of Justices Breyer and Sotomayor) temporarily barred enforcement of the HHS mandate (including the accommodation) for Wheaton College).  At a minimum, this confirms that the Court has not yet embraced the accommodation as the least restrictive means of pursuing the government’s goals as they pertain to religious employers.

Also, shortly following the decision in Hobby Lobby, several federal courts (including two courts of appeals) temporarily enjoined the HHS mandate (with accommodation) for multiple religious non-profits.  The U.S. Court of Appeals for the Tenth Circuit granted this relief to several Catholic entities, allowing them the same temporary remedy that the Supreme Court granted to the Little Sisters of the Poor.  That is, they allowed them to opt out of the self-certification requirement, as noted by the Supreme Court’s Hobby Lobby opinion in footnote 9 (cited also by Justice Kennedy in his concurrence).

Even more striking (and auspicious for religious non-profits), only hours after the Hobby Lobby decision, the U.S. Court of Appeals for the Eleventh Circuit enjoined the HHS mandate (with accommodation) as applied to EWTN (a prominent American television network featuring Catholic programming), “in light of” the Supreme Court’s decision.  In a powerful concurring opinion, Judge William Pryor cited the Supreme Court’s warning that neither the government nor the court shall substitute its own judgment for EWTN’s regarding the “substantial burden” of the HHS mandate in light of Catholic teaching on cooperation and scandal.  Judge Pryor next engaged directly those federal courts (the Sixth and Seventh Circuits) that seemed not to grasp that the self-certification form (at least for self-insured institutions) is a legally required and binding directive by the employer to its agent (the TPA) specifically authorizing it to provide the very services to which the employer objects:  “Because without the form, the [TPA] has no legal authority to step into the shoes of the [employer] and provide contraceptive coverage to the employees an beneficiaries of the [employer].”  In other words, the accommodation in this context forces the religious employer to say “no” in a manner that functions as legally operative “yes.”  Judge Pryor is the first court of appeals judge to explain this mechanism so clearly and forcefully, and his opinion will be essential reading for litigants and justices alike going forward.  (N.B.:  U.S. District Judge Lee Rosenthal also offered a cogent and incisive argument in this vein in East Texas Baptist University v. Sebelius).

In conclusion, despite initial appearances, Hobby Lobby offers a great deal of hope to religious nonprofits that soon they will be free once again to care for the poor, feed the hungry, minister to the sick, visit the prisoner, welcome the immigrant, and educate the young without being forced by the government to violate their deeply held principles.