Re: Lederman on ‘Substantial Burden’

by Matt Bowman

Ed provided several excellent rebuttals of Marty Lederman, who recently argued against the existence of a “substantial” burden in the challenges to Obamacare’s abortion-pill mandate. I write to expand on Ed’s post addressing Lederman’s “fundamental premise”: that the government isn’t substantially burdening the action of providing health insurance if federal law doesn’t require the employer to provide health insurance in the first place.

Ed showed from the reasoning of Sherbert v. Verner that even if the government doesn’t force a person to do something, for example, to work on the Sabbath, or to have a job at all, the state can’t condition her receipt of unemployment benefits on her ability to violate her beliefs by taking a job working on the Sabbath. That condition is a substantial burden on religious beliefs, regardless of whether the law forces the person to engage in the underlying activity of working, or of receiving unemployment benefits. If a person is doing something that people are free to do, and the government conditions doing it on violating a religious belief, that condition imposes a “substantial” burden.

Lederman insists that Ed’s interpretation of Sherbert “does not resemble anything the Supreme Court has ever imposed in the Free Exercise doctrine.” But if you go and read Sherbert itself, at 374 U.S. 404–06, there’s a passage where the Court encounters an argument just like Lederman’s, and responds with something approaching a rant.

The Supreme Court confronted the suggestion that the condition on Ms. Sherbert’s unemployment benefits is not a Free Exercise Clause burden because “unemployment compensation benefits are not appellant’s ‘right’ but merely a ‘privilege.’” The Court seems to lose its patience upon hearing this suggestion. “It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” The Court then lists a string of prior cases showing that “conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms.”

Even if the government is “under no obligation to afford” a particular privilege or benefit to a citizen in the first place, “the imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s]the exercise of First Amendment rights of expression.”

“Even a gratuitous benefit” — that’s strong language. The Court then felt the need to repeat this same sentiment to conclude its discussion: “to condition the availability of benefits upon this appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.”

I don’t know how much more emphatically the Supreme Court could make this point. Even if an activity is a mere “gratuitous” privilege or benefit, the government’s placement of a condition on that activity inconsistent with someone’s religious beliefs constitutes a substantial burden. This is because in America, pursuing free activities consistent with one’s beliefs is at the heart of the meaning of our “liberties of religion.” It is “too late in the day” to even propose otherwise.

So in the abortion-pill mandate challenges, an employer’s action of providing insurance is — at minimum — a government-regulated privilege (especially under Obamacare). But the government is conditioning the exercise of that privilege on the willingness to violate one’s religious beliefs against providing drugs that may cause abortion, contraception, and sterilization in the insurance. Under Sherbert such a condition “inevitably” burdens Free Exercise Clause rights.

Lederman does not grapple with this language from Sherbert, but instead quotes a later case, Thomas v. Review Board. But Lederman feels the need to add his own emphasis in that quote. Lederman quotes Thomas in an attempt to say a benefit being conditioned on religion must be “important” (adding italics not found in the original case) or else the burden is not substantial. From this non-emphasized word, Lederman derives an even more forceful idea: that the government isn’t substantially burdening religion unless it is imposing the “virtual” equivalent of a “direct prohibition.” But Thomas cannot be read to negate Sherbert’s insistence that “even a gratuitous benefit” or privilege, if conditioned on religious exercise, is “inevitably” the cause of a substantial burden. When Sherbert insists that one’s ability to engage in the conditioned activity can be “gratuitous” and yet the activity is still substantially burdened, we cannot conclude that a “virtual prohibition” on the activity is necessary to constitute a substantial burden.

No context in the Thomas opinion shows an intent to limit Sherbert on this question. To the contrary, Thomas was reemphasizing and even expanding on Sherbert’s holding. The entire point of Sherbert and Thomas is that direct prohibitions are not the only ways for a government to impose a substantial burden — the government can also do so merely by imposing indirect pressure. But Lederman would collapse the Sherbert line of cases into the “direct prohibition” category, and would also overturn Sherbert’s insistence that even “gratuitous” privileges suffer substantial burdens if they are conditioned against religious exercise. Lederman’s position makes one wonder how the plaintiffs in Sherbert and Thomas won their cases, since no law required them to work under religiously offensive conditions, or to work at all.

It is hard to fathom how Lederman concludes that “there are no cases in which the Court found that indirect encouragements or disincentives created a cognizable burden.” Thomas could not have stated this more clearly: “While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Such emphatic statements in both Thomas and Sherbert simply cannot be reconciled with Lederman’s position.

— Matt Bowman is senior legal counsel for Alliance Defending Freedom and represents Conestoga Wood Specialties in its pending Supreme Court challenge to the HHS mandate.

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