Eugene Volokh on RFRA and Substantial Burden

by Ed Whelan

In the latest of his ongoing series of posts on the HHS mandate cases, law professor Eugene Volokh dismantles the Obama administration’s badly confused argument that the HHS mandate doesn’t substantially burden objecting employers’ exercise of religion because it doesn’t compel them to use or administer the contraceptive drug they object to. Some judges, including dissenting Seventh Circuit judge Ilana Rovner here, have embraced the argument, and it’s a staple of commentary from the Left. (I’ve refuted the argument on various occasions, including here.)

Here are some excerpts from Volokh’s post (though I again encourage you to read the whole thing, including his fuller discussion of the governing Supreme Court precedent of Thomas v. Review Board):

[U]nsurprisingly, many people believe that, when some behavior is wrong, many sorts of complicity with that behavior are wrong, too.… Where the connection becomes too attenuated, and morally or religiously culpable complicity stops, is a question on which reasonable people will differ.

But for purposes of RFRA, the question isn’t whether a judge or jury agrees with a person’s claim that a law [that] requires him to engage in behavior is sinful — it is whether the person sincerely believes that the behavior is sinful. Likewise, when the person believes that complicity itself is sinful, the question is not whether our secular legal system thinks that he has drawn the right line as to complicity; it is whether he sincerely believes that the complicity is sinful.…

Thomas v. Review Board (1981) is the classic illustration of this. Thomas had been working at a machinery company, and was transferred to a department that produced tank turrets. Thomas refused to work on such military production, and was fired. Under the Court’s Free Exercise Clause jurisprudence, whether Thomas could claim unemployment compensation turns on whether his refusal to work on war production was an exercise of his religion.…

Thomas wasn’t, of course, being required to kill anyone using a tank, to fire a tank gun, to ride in a tank helping the gunner, or to assemble a completed tank. But he thought that the religious prohibition went further than that. Even making tank turrets — though not making steel that would go into a tank — was, he thought, itself sinful complicity with sin.

And the Court held that it was for him, not for the secular courts, to figure out where he thought God wanted him to draw a line. The “substantial burden” requirement didn’t require that the connection be “substantial” enough in the secular legal system’s understanding of complicity.…

Likewise, the Hobby Lobby owners drew a line: Providing health insurance — including through their closely held corporation — that covers what they see as tools for homicide is sinful complicity with sin. Providing salaries that employees may use to buy the same tools, or hiring employees who use those tools, is not.

Many of us might draw the line elsewhere (even if we agreed with the judgment that the potentially implantation-preventing contraceptives are sinful). But it is for the owners of Hobby Lobby to draw the line, and not for the courts to second-guess it. Perhaps there is a compelling interest that justifies the substantial burden that the law imposes on the owners … but courts cannot say that the burden is insubstantial simply because they think the complicity is too attenuated.

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