Guide to Zubik/Little Sisters Merits Briefs—Part 3 (Substantial Burden)

by Ed Whelan

See Parts 1, 2

Under the Religious Freedom Restoration Act, the federal government may not substantially burden a person’s exercise of religion unless it can prove that “application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (Emphasis added.) I’ll address the substantial-burden component in this post.

As I’ve remarked before, and as five Tenth Circuit judges observed in their dissent from rehearing en banc, it is astounding, especially in the aftermath of the Supreme Court’s 2014 ruling in Hobby Lobby, that all the federal appellate courts that have rejected challenges to the HHS mandate accommodation have badly botched the simple substantial-burden inquiry. The Little Sisters brief (pp. 41-56) and the Zubik brief (pp. 27-52) set things straight. Some of their points:

1. Just as in Hobby Lobby, it is undisputed that the religious nonprofits have sincere religious objections to providing contraceptive coverage that contradicts their religious beliefs. But under the HHS mandate accommodation they face massive fines if they fail to do so. That is a quintessential substantial burden on religious exercise.

2. The supposed accommodation is illusory, as it continues to require the religious nonprofits to take actions to facilitate the objectionable coverage. Far from being an “opt-out” or an exemption, the accommodation would require them to make their plan infrastructure available for provision of the contraceptive coverage.

3. The proper analogy is not to a conscientious objector who objects to even having to object (the religious nonprofits have, after all, made their objections clear), but to a conscientious objector who objects to a government policy that allows him to avoid military service only if he facilitates the military service of another person in his stead.

4. The substantial-burden analysis turns on the pressure the government applies to compel the objected-to actions, not on the physical or financial burdens of undertaking those actions. “Thomas More went to the scaffold rather than sign a little paper for the King,” and it was the scaffold, not the toil of signing, that substantially burdened his religious beliefs. (Quoting Fifth Circuit judge Edith Jones.)

5. At bottom, the government is really claiming that the Little Sisters are wrong theologically in regarding their compelled role as morally illicit facilitation. But it is long settled that the federal courts have no authority to make such a judgment. Further:

It takes real chutzpah for the government to deem the actions it demands of petitioners sufficient for compliance under the Code of Federal Regulations, yet then turn around and claim that those same actions are somehow incapable of constituting facilitation or complicity under the Bible…. The government cannot second-guess their determinations under the guise of second-guessing their competence to grasp how its regulatory scheme actually works. And it certainly cannot do so when the government itself concedes that the actions it demands of petitioners are “necessary” to provide contraceptive coverage through their plan infrastructure…. [Little Sisters brief, at 50-51.]

6. The religious nonprofits are not objecting to the actions of third parties. They’re objecting to being required to facilitate such actions. That distinction is well recognized in case law.

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