Symposium: Adjudicating substantial burdens

Frederick Mark Gedicks is Guy Anderson Chair and Professor of Law at Brigham Young University. He has authored numerous articles on religious exemptions and the ACA contraception mandate. This post reflects his personal views and not necessarily those of Brigham Young University.

It is a bedrock principle of Anglo-American law that no man is allowed to be a judge in his own cause, as James Madison put it in Federalist 10. The reasons are obvious, but Madison spelled them out anyway: His interest would certainly bias his judgment and, not improbably, corrupt his integrity. The Supreme Court should apply this principle in the cases consolidated as Zubik v. Burwell.

The contraception mandate of the Affordable Care Act categorically exempts the health plans of churches and other houses of worship, while providing an accommodation from the mandate for the plans of religious colleges and universities, hospitals, social service agencies, and other such religious non-profits. A non-profit that is not categorically exempt may nevertheless opt out of the mandate by providing the government with a self-certification written notice of the contraceptives to which it objects and the name and contact information of its health insurer or third-party administrator (TPA). The government then notifies the insurer or TPA of its legal obligation to provide directly to plan participants the contraception coverage that the nonprofits plan declines to provide. (A religious non-profit may also self-certify directly to its insurer or TPA.)

The religious non-profits in these cases claim that self-certification substantially burdens their anti-contraception beliefs under the Religious Freedom Restoration Act (RFRA), by triggering or facilitating coverage of contraceptives by insurers and TPAs. The linchpin of their argument is that courts may review only the sincerity of this claim: Once a non-profit claimant honestly pleads that self-certification constitutes a substantial religious burden, the substantiality of the burden is conclusively established and immune from challenge by the government or review by the courts.

This argument misconceives the law. It ignores Congresss purpose in restricting RFRA relief to substantial religious burdens, it misunderstands the religious-question doctrine, and it undermines both religious-exemption policy and the rule of law.

RFRA originally did not specify the weight of the burden on religion that would justify exemption relief. It was only during the final debate that Senators Edward Kennedy and Orrin Hatch, RFRAs Senate floor managers and principal co-sponsors, proposed that relief be limited to substantial religious burdens. They did so to address powerful concerns that RFRA would impose unacceptable costs on prison and public school administration. (Congress intended RFRA to apply to all government action; City of Boerne v. Flores (1995) later limited it to federal government action.) Kennedy and Hatch urged that the amendment would relieve government from having to satisfy RFRAs compelling-interest and least-restrictive-means tests for actions having only an incidental or some effect on religion. Congress obviously did not intend that prisoners, students, and other claimants could define substantial however they like; this addition makes sense only if courts, not claimants, determine its meaning.

What about the so-called religious-question doctrine? This doctrine prohibits courts from deciding cases by answering theological questions, but not from deciding cases on the basis of secular principles of law, even when the answer to a theological question seems relevant. The Court made this clear in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), in which it found that a ministerial exception exempts religious congregations from federal employment laws when they hire or fire clerical leaders. The Court held that the Religion Clauses prohibit courts from defining a Lutheran minister for a Lutheran congregation.

But the Court did not hesitate to define minister in order to apply the exception. It held the plaintiff a minister within the meaning of the exception, based on the formal title given [her] by the Church, the substance reflected in that title, her own use of that title, and important religious functions she performed for the Church factors the Court came up with on its own. If the Court is going to relieve religious employers of significant liability, then obviously the Court itself needs to police the boundaries of that exception, lest employers push those boundaries so far that the exception swallows the rule. The Court may not define the meaning of minister for the religious purposes of Lutherans, but it, and not Lutherans, must define minister for the secular purpose of applying the ministerial exception.

Who should decide whether a religious burden alleged under RFRA is substantial? Burwell v. Hobby Lobby Stores seemed to say that only RFRA claimants may make this judgment a very bad idea, for the same reason that religious employers should not decide which of their employees are ministers lacking the protections of federal employment law. Of course, Hobby Lobby might only stand for the unobjectionable proposition that the courts have no business deciding the theological consequences for employers of supplying contraceptives in their health plans. But courts can and must decide whether a burden is substantial in applying RFRA. Leaving that decision in the hands of exemption claimants would effectively read substantial out of RFRAs text and subvert Congresss reason for adding it in the first place.

Respecting a non-profits belief that self-certification makes it complicit in its insurers or TPAs subsequent distribution of contraceptives does not require courts to decide that self-certification is a substantial religious burden under RFRA. If a court may formulate a secular definition of minister to police the boundaries of the ministerial exception, it may equally formulate a secular definition of substantial to police the boundaries of RFRA exemptions. The common law has developed rich and sophisticated doctrines that specify the bounds of secondary criminal or civil liability doctrines that mark the limits, for example, of accomplice liability, factual or but for causation, liability when others intervene, and liability for defective products. A court may properly define a substantial burden by reference to these secular legal principles, by asking whether they would hold a RFRA claimant culpable or liable if its claim of complicity were raised in connection with criminal or civil liability.

For example, the contraception mandate requires health plan insurers to offer contraception coverage through the plans they sell or directly to employees and dependents when a religious employer opts out. Nothing a religious non-profit does can trigger contraception coverage, as the claimants in these cases have argued, because insurers are legally charged to provide this coverage regardless of whether a non-profit opts out. In short, self-certification is not even a but for cause of contraception coverage, let alone a proximate one.

Secular principles of causation have long held that a person cannot be held legally responsible for harms the person did not factually cause. The lower court determinations in these cases that self-certification does not trigger contraception coverage were not interpretations of claimant theology prohibited by the religious-question doctrine, but secular legal judgments that self-certification is not a substantial burden under RFRA because it does not factually cause the contraception coverage to which the claimants object.

A comparable analysis applies to TPAs of self-insured plans. The plaintiffs in these cases have argued that the interaction of self-certification with certain requirements of ERISA makes self-certifying non-profits but for causes of the contraception coverage TPAs subsequently provide to employees. But even if this were true, factual causation is not a legally sufficient basis for liability under secular principles of causation, especially in case of harmful products. Products-liability law generally precludes responsibility for harms caused by products one did not sell or distribute. By self-certifying, a religious employer removes itself and its health plan from the distribution chain for contraceptives, which instead are distributed directly to employees by its TPA. Again, the denial of RFRA relief here is not a prohibited rejection of claimant theologies of complicity, but a legal judgment that secular principles of civil liability do not impose responsibility in comparable circumstances. The burden of self-certification, therefore, is not substantial even for non-profits with self-insured plans. (I have elsewhere explained in detail how courts may use principles of tort liability to adjudicate the substantiality of burdens alleged by the claimants in this case.)

Madison was right. Leaving RFRA claimants as the sole judges of whether a law substantially burdens their religious exercise will inevitably damage both RFRA and their religions. No one can make impartial judgments about a matter that so deeply implicates self-interest, and no one will respect such self-interested judgments or the statute that enables them. Knowing that their claims of substantial burden are not subject to judicial review, religious non-profits will also be tempted to shape theologies and inflate burdens to meet the requirements of RFRA litigation. The stakes are especially high when, as here, a RFRA exemption would impose the costs of living the accommodated religion on those who believe and practice differently, as Ira Lupu and Robert Tuttle show in their contribution to this symposium. Such cost-shifting exemptions are a classic Establishment Clause violation, privileging practitioners of exempted religions at the expense of those who practice other religions or none at all.

The lower courts in these cases rightly refused to decide whether self-certification makes a religious non-profit theologically complicit in sin. The courts stood on firm constitutional ground by relying on secular legal principles to find that self-certification is not a substantial burden under RFRA.