Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 4

by Ed Whelan

See Parts 1, 2, 3

As I have discussed in my previous posts, Judge Sykes’s majority opinion in Korte v. Sebelius straightforwardly applies Supreme Court precedent to hold that the federal Religious Freedom Restoration Act entitles plaintiffs to preliminary injunctive relief against the HHS mandate. In her dissent, by contrast, Judge Rovner repeatedly departs from and defies Supreme Court precedent.

In the first part of her dissent (pp. 68-77), Rovner presents several elaborate hypotheticals that she says “illustrate the uncertainty” that the majority’s application of RFRA “brings to a number of statutory schemes.” But the certain damage that Rovner’s dissent would inflict on basic principles of religious liberty is far more real than anything in her hypotheticals. To sum up:

1. In order to deny the limited proposition that a closely held, family-owned corporation can exercise religion, Rovner goes so far as to contest the established principle, reiterated by the Supreme Court in 2012 in its unanimous decision in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, that a “religious organization” (whether or not incorporated) “has free exercise rights of its own.” (P. 83.) Under her approach, a religious organization would have only “associational standing to represent the free exercise rights of its members.” (P. 82.) And since she misconceives of religious exercise solely as “an intensely individual experience” (p. 86)—rather than as something that individuals routinely carry out in association with others, including through organizations—she would construe those individual free-exercise rights very narrowly.

(The Obama administration, which doesn’t embrace Rovner’s extreme position on religious organizations, faces a different problem. A nonprofit “religious organization” can operate the same sort of “secular” businesses that a for-profit corporation can operate. The Obama administration can’t explain how it is that a nonprofit religious corporation can exercise religion when it operates a business but that a closely held family corporation operated in accordance with the family’s religious commitments can’t exercise religion when it does the very same thing.)

2. The stark consequences of Rovner’s position for religious liberty are evident in her view that an incorporated Jewish deli, owned and operated as a for-profit business by a Jewish family abiding by its religious beliefs, would have no free-exercise right to assert against a law requiring that it sell pork.

3. In contravention of Supreme Court precedent, Rovner would hold that a burden on a person’s religious exercise is not substantial under RFRA unless it is imposed directly on that person. She would thus invite and allow legislators and regulators to resort to strongly coercive means so long as they coerce “indirectly.”

4. Again in violation of Supreme Court precedent, Rovner’s approach reflects the position that courts have the authority to reconceive a person’s understanding of his own religious commitments and to impose their own view of the range of permissible belief about what constitutes improper complicity in immoral conduct.

5. Despite acknowledging in the context of her hypotheticals that strict scrutiny is “one of the most demanding standards known in our legal system” (p. 77), Rovner would eviscerate RFRA’s standard of strict scrutiny. She ignores the Supreme Court’s directive that the government’s compelling interest can’t be “broadly formulated.” And she substitutes empty speculation for the government’s burden to show that it is using the means that is least restrictive of religious liberty.

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