On to the real battleground: Can the federal government satisfy the strict-scrutiny test that RFRA imposes? I’ll address the compelling-interest prong in this post and the least-restrictive-means prong in the next.
The Little Sisters brief (pp. 56-71) and the Zubik brief (pp. 27-52) compellingly demonstrate that the federal government cannot establish that the burden that it has placed on the religious nonprofits is in furtherance of a compelling governmental interest. Some highlights:
1. The government’s claim of a compelling-governmental interest is defeated by the pervasive non-religious exemptions to the HHS mandate. How can the government claim that its interest in enforcing HHS’s regulatory definition of “preventive services” is so compelling as to preclude exemptions for religious employers when Congress itself created a broad exemption for grandfathered plans (see Part 2, point 1)—and did so for no other reason than to avoid the inconvenience of amending an existing plan? Surely religious objections are at least as weighty as administrative convenience.
How can the government assert that its interest is compelling when Congress entirely exempted small businesses from any duty to provide health coverage to employees? If the option of insurance obtained on the exchanges is good enough for employees of small businesses, it’s good enough for those who don’t like the coverage exclusions that their nonprofit religious employers adopt.
2. The government’s claim of a compelling-governmental interest is also defeated by the religious exemptions that it has granted. (See Part 2, point 2.) How can the government deny an exemption to religious employers who object to the mandate while exempting religious employers who have no objection to it? How can it sustain its evidence-free claim that the religious employers that it has exempted are more likely to have employees who share the exemption than those that it has subjected to the accommodation? How can it justify drawing the line in a different place than Congress drew the line for employment practices? What possible “compelling interest” can explain such haphazard line-drawing?