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Symposium: Religious opt-outs or religious vetoes?

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 (Eerdmans Publishing Co., 2014).

The seven cases consolidated under the caption Zubik v. Burwell present a single question: may an assertion of religious freedom ever be allowed to function as a religiously motivated veto of a policy designed to protect others? As a matter of law, logic, morality, or politics, the answer is no.

Under the Religious Freedom Restoration Act (RFRA), the complainant must show a substantial burden on its religious exercise. As seven decisions in the courts of appeals and Frederick Gedicks’s post in this symposium amply demonstrate, the religious entities suing have failed to make that showing. Even if this judgment is wrong, the United States has compelling interests in sustaining the mandate and this accommodation. These include enhancements to women’s health and reproductive autonomy, a proportionate but not absolute respect for religious entities, and constitutional interests in avoiding a violation of the Establishment Clause.

If the Court’s analysis reaches the government’s “compelling interests,” the United States will also have to show that application of the law to the complainant is the “the least restrictive means of furthering that compelling governmental interest.” The majority opinion in Burwell v. Hobby Lobby Stores recklessly suggested that the contraceptive mandate failed this portion of the test because the government could directly finance the contraceptives at issue. The opinion ultimately backed away from that suggestion, however, in order to keep Justice Anthony Kennedy’s crucial fifth vote. Drawing on a theme more expansively developed in Kennedy’s concurrence, the Court observed that the government could expand the accommodation for non-profits, now challenged in this case, to Hobby Lobby and similar entities. With that regulatory change, the Court held, the accommodation would guarantee women full contraceptive coverage under the Affordable Care Act (ACA) and thus satisfy the government’s interest with a means less restrictive of Hobby Lobby’s religious freedom.

This provision of RFRA deserves closer attention, and the act provides the appropriate interpretive prism. RFRA declares that its purposes include restoration of “the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder.” Importantly, neither Sherbert nor Yoder uses the language of “least restrictive means,” nor does either opinion inquire into the many possible means available to achieve the government’s ends. Instead, both opinions insist only that the government, in pursuing its interests, avoid gratuitous infringements on religious freedom.

In Sherbert, the state expressed concern about the “filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work.” The Court responded by noting that “it would plainly be incumbent upon the [state] to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.” In other words, the state is free to “combat such abuses,” but may not do so by the massively overbroad disqualification of all Saturday Sabbatarians. Instead, it must use means narrowly tailored to spotting fraud, without burdening honest claims of religious exercise.

In Yoder, the Court used an identical metric to evaluate the exemption claimed by the Amish, who refused to send their children to school until the age of sixteen, as required by state law. As the Court wrote, “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” The cryptic reference to “interests not otherwise served” led to a highly detailed analysis of Amish life, in which the Court concluded that the religious community’s practices satisfied the state’s interests in adequate education for minors. Nowhere in Yoder is there a hint that the state must use means that are the “least restrictive” of religious liberty.

How does this affect the interpretation of RFRA? RFRA’s compelling interest test, as set forth and applied in Sherbert and Yoder, demands close evaluation of the state’s goals and the extent to which religious exemptions will undermine them. If religious accommodations can be made without harm to strong state interests, RFRA pushes toward such accommodations. If the accommodation significantly impairs the government’s pursuit of those interests, RFRA does not support the accommodation.

This approach to RFRA is utterly faithful to the act’s self-declared purpose. It is perfectly consistent with the long-term understanding of “least restrictive means” in other areas of the law, as disparate as free speech and antitrust law. And this approach represents the exercise of considered judgment. Evaluation of the “least restrictive alternative” cannot mean – unless the statute is expanded beyond all reason – that government loses unless it has chosen means that are most favorable to the religious claimants. Under that standard, if religiously motivated parents sought to deny medical care to their critically ill child, the government would need to prove that any element of treatment ordered by the state was selected because it did the least damage to the parents’ religious concerns.

Instead, as Judge Cornelia Pillard wrote in two of the cases under review, the requirement to use the “least restrictive alternative” demands only that the government choose a means that will respect religious freedom without undermining the state’s ability to accomplish its important goals. That is precisely what the challenged accommodation does by allowing religious institutions to opt out of covering contraceptives in their insurance policies, while looking to other, non-objecting parties to provide the coverage.

If RFRA required the government to disconnect the contraceptive mandate entirely from the web of contracts that link employers to employees (or students, in the case of educational institutions), the mandate would inevitably fail for many women. Congress is highly unlikely to enact a separate spending program for these socially controversial services. Even if political feasibility is legally irrelevant, a wholly separate government-run program would confront women with logistical and informational impediments to obtaining the services. The affected institutions would almost certainly refuse to inform women of these alternative programs. Fewer women would be helped, and the government’s interests would thus be set back, not “furthered” within the meaning of RFRA.

As we wrote at the top of this post, the question in this case can be reduced to the singular – may religious plaintiffs use RFRA to veto a policy designed to aid others, rather than just avoid an obligation? Shortly before the enactment of RFRA, the Court ruled in Lyng v. Northwest Indian Protective Cemetery Association that the Free Exercise Clause of the First Amendment did not give Native Americans the right to block construction of a road on public property, even though the Native Americans believed that the road disturbed space long held sacred by them. Religious freedom may permit plaintiffs to protect themselves. But that freedom does not empower claimants to block the government’s efforts to advance its interests, especially when those interests involve the protection of others.

The rhetoric of those who are challenging the accommodation leaves no doubt that their objectives include defeating the government’s efforts to provide women access to contraceptives. An example from the long history of conscientious objection demonstrates the extraordinary overreach of such a legal strategy. Those who conscientiously object to bearing arms in wartime may have the right to be excused from service. But they never have the right to keep the government from conscripting others in their place, even if they feel complicit in the government’s selection of others. In this case, the plaintiffs claim that giving notice of their opt-out rights makes them complicit in what they deem to be the scandal of contraception. Like those who, once exempted themselves, would object to conscripting others, the plaintiffs here aim to impede the government’s efforts to ensure that all women may obtain the contraceptives guaranteed under the ACA. No proper conception of religious freedom can justify that degree of interference with democratically determined measures for advancing the public welfare.

Recommended Citation: Ira Lupu and Robert Tuttle, Symposium: Religious opt-outs or religious vetoes?, SCOTUSblog (Dec. 15, 2015, 9:33 AM),