Professor Vincent Muñoz is one of this country’s foremost scholars on religious free exercise. His recent criticisms of the religious-liberty challenge to the HHS mandate at Public Discourse, though well-reasoned, underestimate the challenge’s merits. In so doing, Professor Muñoz prematurely closes the door to litigation that can better protect the free exercise of all Americans.
It is true, as Professor Muñoz says, that not all religious objectors to the mandate are likely to be exempted, but that should not be a reason to stop pursuing their claims.
For one, the HHS rule already contemplates religious objections (albeit narrow ones), so it’s not as if the mandate’s challengers are forging into unchartered territory that could hurt religious freedom. The implication from the rule already allowing some objections is that the administration contemplated the mandate’s infringement on religious freedom. Litigation against the mandate can only raise the ceiling so as to include more exemptions — it would not undermine the floor already existing in the regulation.
For another, the public-interest law groups advancing the litigation would likely agree with Professor Muñoz that the preferential option here would be a complete repeal of the HHS mandate so as to infringe on no one’s liberty. But while that is an ideal to which all those committed to religious freedom should strive for and support, if the choice comes down to an exemption-laden rule or a restrictive rule, religious liberty advocates would be wise to at least try and expand the exemptions through litigation.
Professor Muñoz thoughtfully articulates the nature of the infringement imposed by the HHS mandate, as well as the faux “solution” hinted at by the president. Accordingly, neither point will be belabored here. Rather, I will respond to Professor Muñoz’s principal objections to the litigation in the manner in which he made them.
Cost 1: Exemptions Not Extended to All Objectors
Professor Muñoz argues that the litigation strategy being pursued disadvantages powerless religious objectors, but it’s worth noting that there’s not some kind of conscious strategy to shut out for-profit companies or self-insured individuals who would want to litigate against the mandate. In fact, my experience suggests that the Becket Fund for Religious Liberty and the Alliance Defending Freedom would be thrilled to diversify the types of plaintiffs bringing suit.
Those desiring to assert their religious liberty in court should not be told it’s unwise for them to do so because other, different types of plaintiffs have not similarly stood up. Rather, the effort should be made to more actively recruit diverse plaintiffs. The U.S. Conference of Catholic Bishops, for example, is adamant that the challenge posed by the HHS mandate is not just a challenge against the Catholic Church, or against Catholics. It’s a challenge as to whether or not the government can define what constitutes religious activity — a definition affecting the conscience of each individual American. This is the correct position, and our response to it should be to support the effort to recruit other plaintiffs, not to tell the recruiters to give up their litigation efforts until more diverse plaintiffs join them.
Professor Muñoz wisely notes the mandate challenge by a Colorado corporation as a caveat to his criticism. Yet the concern that a victory by Hercules Industries will not likely extend to other objecting for-profit companies fails to appreciate the law regarding the religious liberty rights of corporations.
As recently as 2006, the U.S. Court of Appeals for the Eleventh Circuit held that “corporations possess Fourteenth Amendment rights of equal protection, due process, and through the doctrine of incorporation, the free exercise of religion.” While that case dealt with a church chartered as a corporation, the court’s reasoning rested on the U.S. Supreme Court’s decision in First National Bank v. Bellotti, which recognized that First Amendment religious freedoms are also within the province of corporations. No distinction in case law exists between corporations whose purpose is to further religion and corporations who do not have such a purpose. Surely, in the context of natural persons, a cleric does not get more freedom to freely exercise his religion than a member of the laity because the cleric’s professional purpose advances religion. Everyone has Free Exercise rights — whether he wears a roman collar, a white collar, or a blue collar. There’s no reason to think something different should be true for corporations, especially when the origin of their Free Exercise protections — the First Amendment — is the same for natural persons.
Ultimately, as stated above, a full repeal of the HHS mandate would be the preferred option for those seeking to protect everyone’s religious liberty. But the efforts by those willing to stand for their liberty in court should not be curtailed because others will not.
Additionally, I have to question the professor’s argument that “litigation strategies tend to benefit large, institutional religious organizations, while failing to cover relatively powerless religious individuals” as a general matter. The history of religious exemptions to laws of general applicability seems to cut against this assertion. The Amish families in Wisconsin v. Yoderwere hardly “large, institutional religious organizations,” but rather parents who protested a $5 fine against their children not attending compulsory education. Neither the Jehovah’s Witnesses in Cantwell v. Connecticut, Murdock v. Pennsylvania, West Virginia Board of Education v. Barnett, or Wooley v. Maynardfit that description either. The same is also true for the Seventh Day Adventist in Sherbert v. Verner, and the peyote users in Employment Division v. Smith. Thus the answer here seems to be a greater recruitment effort of other small businesses to join the efforts of the public-interest law groups, rather than a rebuke of the entire litigation.
Cost 2: Exemptions Lead to Improper Governmental Decision-Making about Religion
Professor Muñoz’s second argument boils down to an appreciable concern that “judges, not litigants, ultimately decide what constitutes a ‘substantial burden’ on religion.” This would present the problems Professor Muñoz outlines if it really meant, as Professor Muñoz argues it does, “that state officials determine what constitutes authentic religious practice,” which requires an inquiry “into citizens’ religious status.” But this is not the test for a religious-based exemption to a law of general applicability under the Religious Freedom Restoration Act (RFRA).
The test under RFRA requires both a “substantial burden” on the claimant’s religious free exercise, and if such a burden exists, that the government have a compelling state interest in imposing such a burden while also using the least restrictive means to achieve its interest. Professor Muñoz’s first objection is rooted in the potentially precarious position judges would find themselves in if proving a “substantial burden” meant an inquiry into religious authenticity. But it does not. RFRA was understood to revert to earlier First Amendment Free Exercise law that made the finding of a “substantial burden” a low threshold.
As explicated by the Court’s holding in Sherbert v. Verner, when government action forces an individual “to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand,” a substantial burden exists. This need not be all that severe — as referenced earlier, the Supreme Court found a substantial burden had been imposed on two Amish families who were fined $5 each for not sending their children to high school because of the dictates of their religion. Furthermore, as the Court explained in Employment Division v. Smith, the existence of such a burden does not at all depend on the centrality of the activity to the claimant’s religion. Thus the concern that this fairly low threshold will open the door to government scrutinizing of religious authenticity is overstated by Professor Muñoz.
The inappropriateness of inquiry into religious authenticity to find a substantial burden is something recognized by courts in the context of defending the free-exercise rights of non-church entities as well. As the U.S. Court of Appeals for the D.C. Circuit recognized in 1898, any inquiry “into the religious beliefs of the single individual, or of the natural persons composing the association or corporation,” even when that corporation is “not subject to the authority and control of an organized church,” through the law violates the First Amendment.
In the context of the HHS mandate, employers incur a fine totaling the base penalty of $2,000 multiplied by the number of full-time employees minus 30. Such a system could bankrupt mandate opponents in the long run, and for institutions like Notre Dame, the annual fines will total into the tens of millions of dollars. No judge need open up the Catechism of the Catholic Church to find a substantial burden on religious exercise here.
What’s more, the mandate contemplates that it will be a substantial burden on religious exercise, as its final language already includes religious-based exemptions. A law written with religious-based objections in its text already — keeping in mind the low threshold of a substantial burden in the first place — does not compel an exacting inquiry into its burdens on religious claimants — such a law concedes them. The question, then, is not whether the HHS mandate substantially burdens religion (it admits as much). The question is whether the government can define the universe of what activity is sufficiently religious to garner an exemption.
The HHS mandate provides religious-based exemptions to “religious employers” whose purpose is the “inculcation of religious values.” Such a purpose exists if the employer “primarily employs persons who share the religious tenants of the organization” and “serves persons who share the religious tenants of the organization.” This definition is so narrow that, as the head of Catholic Charities observed, not even Jesus Christ could get an exemption because He ministered to people who did not share His faith.
Therein lies a key difference between the types of exemptions the mandate litigation seeks, and the types the mandate allows. The HHS mandate only gives out the type of religious exemption that Professor Muñoz fears: based on an inquiry into whether people share certain religious beliefs, and whether religious ministry is furthered by the employer. In contrast, the mandate litigation that Professor Muñoz derides wants exemptions for any individual or entity that is placed in the impossible position of choosing their religion or their livelihood. Not attacking this law in court keeps the type of religious inquiries that Professor Muñoz fears legal, not the other way around.
Professor Muñoz’s analysis also gives short shrift to the other components of stating a claim under RFRA. Even if the claimant can show a “substantial burden” on their religious exercise, that fact alone will not get them an exemption from the law’s requirements. Rather, they also have to show either that the government does not have a compelling interest to substantially burden their religious exercise, or, that even if the government has a compelling interest, the government is not using the least restrictive means to achieve that interest.
These requirements make prohibit the type of false choice Professor Muñoz presents: that we either create a system for religious-based exemptions so small that they exclude powerless parties and invite arbitrary inquiries into religious sincerity, or a system so large that every man becomes a law unto himself. Under this standard, principled lines are able to be drawn. For example, a distinguishable principle exists between exempting religious people from violating their beliefs in exchange for a marginal increase in already broad contraceptive access, and exempting religious people from Constitutional civil-rights requirements in housing which would place the judiciary in the business of enforcing land covenants that violate the Constitution. In the first case, as the Supreme Court has recognized, the government lacks a compelling interest in advancing its goals — here, a marginal increase in contraceptive access. In the second case, the government has a compelling interest — preventing its branches from violating constitutional guarantees to equal protection and due process of law by enforcing contracts that violate civil rights.
The final requirement for a religious-based exemption is also unmentioned by Professor Muñoz: that the government use the least restrictive means to advance its compelling interest. Even if the government had a compelling interest in marginally increasing contraceptive access, forcing religious employers to violate their consciences is hardly the least restrictive means. Why couldn’t the government just hand out contraceptives for free, or directly reimburse the employee who seeks contraceptives? The possibilities here are numerous.
The case for a religious-based exemption to the HHS mandate is too powerful to give up. There’s surely no guarantee of victory in every case, but the challenge’s merits tilt in favor of pursing the litigation. The threat to religious liberty is comparatively greater without it.
Cost 3: Short-Circuiting Long-Term Religious Freedom Arguments for Litigation
Professor Muñoz’s final argument acts as if the mandate’s challengers are no longer presenting the mandate as a threat to religious liberty in general, but as a threat to the Catholic Church’s quirky contraception teachings.
Yet Church leaders have done no such thing. Mere weeks ago, Timothy Cardinal Dolan emphasized in a speech to the John Carroll Society that opposition to the mandate is “notabout [the mandate’s] coverage of chemical contraceptives and abortion-inducing drugs — in spite of the well-oiled mantra from our opponents — but upon the raw presumption of a bureau of the federal government to define a church’s minister, ministry, message, and meaning.”
The Cardinal’s speech further continued the line of attack Professor Muñoz suggested the Church had dropped in favor of litigation: that the law is morally unjust and disrupts the proper relationship between the individual and the state. Cardinal Dolan explained the centrality of religious liberty toward protecting that relationship in causes favored by all political persuasions: anti-slavery, worker’s rights, peace movements, and the pro-life movement. This tone will be furthered on October 20 at a rally for religious freedom advertised at the Cardinal’s speech.
Far from being subsumed by the litigation, the goal for fully repealing the HHS mandate on grounds within the vernacular of all Americans is foremost on the mind of mandate challengers. Yet until the political circumstances allow for repeal through the democratic process, the choice between greater or less religious freedom under the HHS mandate should be an easy one for religious-liberty advocates — even if it requires litigation.
— William J. Haun is a lawyer in Washington, D.C. and policy chairman of the Young Conservatives Coalition. He previously provided research assistance to the HHS mandate challenge in Colorado, and wrote on religious exemptions for the Catholic University Law Review.