Bench Memos

The Elementary RFRA Error

Last Friday, in Conestoga Wood Specialties Corp. v. Sebelius, federal district judge Mitchell S. Goldberg joined the minority of courts that have denied injunctive relief to the owners of for-profit businesses that have religious objections to complying with the HHS mandate. (The current count, I believe, is nine sets of such plaintiffs have obtained injunctive relief, versus five that have been denied it.) I would like to use Judge Goldberg’s opinion to provide a more extended exposition of the elementary error that has led these courts astray.

Here is a sketch of Judge Goldberg’s reasoning on the federal Religious Freedom Restoration Act claim brought by the Hahns, the five individual owners of Conestoga Wood Specialties Corp.:

1. As stated in their complaint, the Hahns object to the HHS mandate on the ground that it “allegedly ‘force[s] [them] to pay for and otherwise facilitate the insurance coverage and use of contraception with an abortifacient effect,’” in “conflict with their sincerely-held religious beliefs.” (P. 2.)

2. We agree with the district court in the Hobby Lobby case that “it is not within a court’s province to question a plaintiff’s [sincerely held] religious beliefs.” We also agree with it that that does not mean that any burden on religion is prohibited by RFRA. RFRA protects only against substantial burdens. (P. 23.)

3. The “core of the Hahns’ religious objection is the effect of particular contraceptives on a fertilized egg.” But the “choice to use an abortifacient contraceptive rests not with the Hahns, but with Conestoga’s employees.” (P. 26.) Any burden imposed by the HHS mandate “is too attenuated to be considered substantial” because a “series of events must first occur before the actual use of an abortifacient would come into play”: payment for a group health insurance plan that complies with the HHS mandate; dispensing of an abortifacient to Conestoga employees; and a decision by an employee to use the abortifacient. (Pp. 26-27.) That means that any burden on the Hahns is also indirect. (P. 27.)

4. “[W]e understand, and have carefully considered the fact[,] that the Hahns may be less focused on what Conestoga’s employees ultimately decide regarding the use of abortifacients, and more concerned with the burden imposed on their religion by the requirement that they provide insurance coverage that may be used to ‘pay for, facilitate, or otherwise support abortifacient drugs.’ (Am. Compl. ¶ 32.) We respect and fully appreciate this concern, and in no way dispute or denigrate its legitimacy and its effect as a burden upon the Hahns’ religious beliefs. However a line must be drawn delineating when the burden on a plaintiff’s religious exercise becomes ‘substantial.’ We conclude that, here, that line does not extend to the speculative ‘conduct of third parties with whom plaintiffs have only a commercial relationship.’” (Quoting Tenth Circuit ruling in Hobby Lobby.) (Pp. 28-29.)

As the careful reader will discern, Judge Goldberg has paid only lip service to the principle that “it is not within a court’s province to question a plaintiff’s [sincerely held] religious beliefs.” Had he in fact “respect[ed]” the actual religious belief that the Hahns set forth in their complaint, it would have been a simple matter for him to recognize that, by preventing the Hahns from operating their company consistent with their belief and by subjecting them to “staunch penalties” (p. 4) for noncompliance, the HHS mandate indisputably imposes a “substantial burden” on their exercise of religion.

Judge Goldberg instead compounds two confusions.

First, purporting to discern the “core of the Hahns’ religious objection,” he recasts them as objecting to the “effect of particular contraceptives on a fertilized egg” (when they in fact object to paying for and facilitating abortifacient drugs). What he is doing, seemingly without realizing it, is redefining the “exercise of religion” that the Hahns seek to protect. (The Seventh Circuit, rejecting the poor reasoning in Hobby Lobby, has spelled out this point clearly. Perhaps I missed it, but I think that Judge Goldberg failed even to cite the Seventh Circuit ruling.)

Second, Judge Goldberg then mispackages his confusion as establishing that any burden on religious exercise is too attenuated and indirect to be substantial. But the fact that the actual conduct that the Hahns intend to engage in is made illegal by the HHS mandate and subjects them to huge fines ought to have awakened him to the fact that his analysis is badly confused.

I’ll also note that Judge Goldberg is wrong to imagine that the burden on a person’s religious exercise is not substantial if the moral complicity that the person wants to avoid depends on the “speculative ‘conduct of third parties with whom plaintiffs have only a commercial relationship.’” Under elementary principles of religious freedom, it is simply no business of the courts to impose on religious believers the courts’ own view of the range of permissible religious beliefs about what constitutes improper complicity in immoral conduct.

If Judge Goldberg were right, the Court’s 1981 decision in Thomas v. Review Board would have been quite different. In that case, an employee who was a Jehovah’s Witness objected to participating in the production of war materials and quit his job in order to avoid producing turrets for military tanks. The Court held that his Free Exercise rights were violated when he was denied unemployment benefits.

Under Judge Goldberg’s approach, the Court should instead have set forth the following propositions: The “core” of the employee’s objection was to the use of weapons in war. Any burden imposed on his refusal to participate in the production of war materials was too attenuated to be considered substantial because a series of events must first occur before the actual use of a tank turret he worked on would be used in war: the government would have to purchase the tank to which the turret was attached; a war would have to take place; and the government would have to use that tank turret in war. But even though the employee had only a commercial relationship with his employer and had no relationship with any of the other third parties whose conduct would be necessary to the supposed “core” of his objection, the Court properly did not entertain the possibility that any of this somehow operated to negate the substantial burden that denial of unemployment benefits imposed on his exercise of his religious beliefs.

Let me emphasize that the fact that the HHS mandate imposes a substantial burden on the Hahns’ exercise of their religious beliefs is not the end of the inquiry under RFRA. There is no violation under RFRA if the government is able to demonstrate that imposing the burden on the Hahns “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” Those inquiries may well bring into play the considerations of employee interests that Judge Goldberg wrongly smuggles into the “substantial burden” inquiry. (See my law-review essay, where I explain that the HHS mandate clearly can’t satisfy these RFRA tests.)

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