Bench Memos

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2

See Part 1 (on corporate exercise of religion)

Resuming my review of the Obama administration’s recently filed Supreme Court brief, I will address in this post DOJ’s remarkable argument that the HHS mandate does not substantially burden those employers who object on religious grounds to including potentially embryo-killing drugs and devices in their employee health-insurance plans. Once again, we see DOJ trying to smuggle into the threshold inquiry under RFRA the sorts of considerations that are fully taken into account when the Court applies strict scrutiny to the burden that that the HHS mandate imposes.

As Hobby Lobby spells out in its own brief, the affirmative case for the existence of a substantial burden is quite simple: “a fine imposed for adherence to religious beliefs is as direct and obvious a burden as one could imagine.” (Internal quotation marks omitted.) Hobby Lobby faces millions of dollars of fines for not complying with the HHS mandate. (The substantial burden in Wisconsin v. Yoder was a $5 fine.) Enough said.

What does DOJ have to say on this point? In astonishing gobbledygook that Hobby Lobby generously calls a “masterpiece of obfuscation,” DOJ (in both its opening brief in Hobby Lobby (p. 33) and its brief as respondent in Conestoga Wood (p. 37)) asserts that a court may find that a burden on religious exercise is not substantial

in cases where the nature of applicable legal regimes and societal expectations necessarily impose objective outer limits on when an individual can insist on modification of, or heightened justifications for, governmental programs that may offend his beliefs.

In supposed support for its unintelligible assertion, DOJ cites unrelated contexts in which “courts reject claims when a proffered injury is too attenuated or the independent actions of third parties are part of the chain of causation.” But there is nothing at all “attenuated” about a massive fine, and, as I discuss more fully here, the “independent actions of third parties” in a “chain of causation” are irrelevant to the substantial-burden inquiry. What Hobby Lobby and its owners object to is being pressured to engage in what they regard as improper complicity in immoral conduct, and Supreme Court precedent clearly establishes that the Court may not second-guess that judgment in the guise of declaring that a massive fine somehow isn’t a substantial burden.

DOJ weakly claims that the individual owners of an incorporated business “are a step further removed from the employees’ decision” to use the potentially embryo-killing drugs and devices. That claim is irrelevant to the substantial-burden inquiry for the same reasons. What matters for purposes of the substantial-burden inquiry for the individual owners is that the HHS mandate threatens their businesses with massive fines if they don’t direct those businesses, contrary to their own religious convictions, to comply with the mandate. (See Hobby Lobby brief at 30-32.)  


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