Americans do not expect to have to defend how they practice their religion until Judgment Day. But if the Obama Justice Department prevails in several ongoing court cases, such judgment may come much sooner than most people anticipated.
How important is it for Jews to keep kosher? How sinful is it for Muslims to drink alcohol? How often must Catholics attend Mass? It sounds farcical, but the Obama administration wants federal judges to decide these types of questions.
The administration has adopted the position that some religious practices are too unimportant to merit protection under the Religious Freedom Restoration Act. This notion contradicts the Supreme Court’s prior interpretations of RFRA and offends both common sense and the American tradition of religious liberty.
RFRA requires the government to demonstrate the compelling nature of any law that would place a substantial burden on a person’s religious exercise. This leads to the inevitable question of what constitutes a “substantial burden.” This question is distinct from an inquiry into whether a person’s belief is sincere. RFRA has two discrete requirements: a sincere belief, and not placing a substantial burden on such a belief. Recent Supreme Court orders indicate that the Court may soon revisit the latter issue.
Litigants have offered conflicting understandings of the “substantial burden” requirement. Religious plaintiffs have argued that this test requires courts to weigh the burden of the punishment a religious person may face for refusing to violate his faith, rather than the importance of the religious practice at issue. For example, if a law required an adherent to choose between violating a sincerely held belief and going to prison, the court must determine only whether imprisonment represents a substantial burden, regardless of the belief at stake.
The administration rejects this view, arguing that a judge must “look at the [religious] action that the plaintiffs want to take.” If a court followed the administration’s interpretation, it would be in the position of asking a plainly theological question: Does this law substantially interfere with an obligation to God? According to this view, if a court decides that a particular religious principle is unimportant, the state can force a believer to choose between violating it and facing a draconian punishment.
This debate is currently playing out in cases like Little Sisters of the Poor v. Burwell. In these cases, religious nonprofits are challenging a regulation requiring them to sign a form, which is the first step in enabling the government to provide their employees with abortion-inducing drugs. The nonprofits claim that this regulation substantially burdens their religious obligations by making them complicit in sin. The government responds that such complicity is too indirect and unimportant for the requirement to rise to the level of a substantial burden.
The administration is so dedicated to this position that it continues to advocate it despite its rejection by the Supreme Court.
In Burwell v. Hobby Lobby, the Court held that a regulation requiring religious employers to provide employees with insurance that supplies abortion-inducing drugs constitutes a substantial burden. The Court noted that the plaintiffs “sincerely believe that providing the insurance coverage demanded by the HHS regulations” violates their religious obligations, “and it is not for us to say that their religious beliefs are mistaken or insubstantial” (emphasis added). The Court concluded that “because the contraceptive mandate forces [the plaintiffs] to pay an enormous sum of money” in fines if they choose to act “in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.”
In Holt v. Hobbs, the Supreme Court held that a prison’s prohibition against wearing beards substantially burdened a Muslim prisoner’s religious liberty. A lower court had held that the rule did not represent a “substantial burden” because it allowed the prisoner to exercise his faith in other manners; because Allah would surely give Mr. Holt credit for trying his best; and because not every Muslim agrees with his interpretation of Islam. The Supreme Court rejected each of these arguments, finding that the inmate “easily satisfied” his obligation of demonstrating that the law substantially burdened his religious liberty, since it required him to choose between his religion and “serious disciplinary action.”
The Supreme Court was right to reject the arguments in these cases, which are the very same arguments the administration is making today. One merely has to look at the analysis that the Court rejected in Holt to see how such a test would inevitably ensnare courts in thorny doctrinal questions.
The notion that the government can decide which religious beliefs are important enough to protect exemplifies the dangers of “big government.” A government that adjudicates the relative merits of religious commandments has invaded the most central and sacred sphere of life, usurping the role of ministers, priests, rabbis, and imams.
A discussion in a recent Fifth Circuit oral argument further highlights the inappropriateness of the government’s proposed test.
One of the judges supplied a hypothetical in order to test the assertion that a court should never weigh the importance of a religious practice. He asked the plaintiffs’ lawyer, “If the government said, all I need you to do is turn on a light switch every day in a room in a building where you’re coming in every day,” would you say “You asked me to do too much” or “I’m coming in but I don’t want to have to turn on the lights”? While this formulation is ambiguous, it seems to demonstrate that the judge considers flipping a light switch an activity that is unlikely to substantially burden someone’s religious exercise.
Later in the argument, the Obama administration’s lawyer supplied the government’s response to this hypothetical. He noted, “If you ask someone to flip a light switch . . . the mere fact that there might be a huge fine if they didn’t flip the light switch doesn’t matter, because the thing that they’re doing, flipping the light switch, does not constitute a substantial burden.”
It is true, as the government’s lawyer mentioned, that none of the plaintiffs maintained that flipping a light switch would constitute a substantial burden, but none of the plaintiffs was an Orthodox Jew. To an Orthodox Jew, a law requiring him to violate the Sabbath by turning on a light could impose on him an extremely substantial burden, possibly even causing him to violate a biblical prohibition, found in Exodus 35:3.
Of course, neither the judge nor the government’s lawyer intended to demean Orthodox Judaism. It simply did not occur to them that the action described in the hypothetical would impose a substantial burden on Orthodox Jews. That is precisely the problem with the government’s approach. America is a large country with an incredible diversity of religions. The most innocuous act to one religion is a substantial burden to another. RFRA, by its terms, protects even idiosyncratic religious beliefs if they are sincerely held.
If judges and lawyers cannot be expected to demonstrate familiarity with the strictures of Orthodox Judaism, a relatively visible minority religion, how can they possibly judge Navajo, Buddhist, Hindu, or Taoist religious practices? Even chaplains must learn about a wide variety of relatively uncommon religious practices “on the job,” and even they are not allowed to discriminate between different doctrines. A judge, who does not need to have studied theology, is even less equipped to analyze religious practices.
None of this is to say that the plaintiff should automatically win every RFRA case. Governments can still win RFRA cases, so long as they show that a challenged statute is the least restrictive means of furthering a compelling government interest. However, the Supreme Court should reject the administration’s invitation to create a hierarchy of religious beliefs. RFRA should continue to protect all sincerely held religious beliefs, regardless of whether the Obama administration deigns to consider them worthy of protection.
— Rabbi Mitchell Rocklin is a doctoral candidate and lecturer in U.S. history at the City University of New York. He is an Army Reserve chaplain and lives in Stamford, Conn. The opinions expressed by him in this piece are his own and do not necessarily reflect the opinions of the Army Reserve. Howard Slugh is an attorney practicing in Washington, D.C.