The last big question under RFRA is whether a substantial burden on a person’s exercise of religion can survive strict scrutiny. More precisely, RFRA provides:
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
From their majority and dissenting opinions in the Seventh Circuit’s recent ruling, let’s compare Judge Sykes’s treatment of the question whether the HHS mandate can satisfy both parts of this test with Judge Rovner’s very different treatment.
On the first element—whether the government can demonstrate that applying the HHS mandate against the plaintiffs “is in furtherance of a compelling governmental interest”—Sykes correctly observes that the Supreme Court’s unanimous opinion in Gonzales v. O Centro Espirita “has instructed us to look beyond ‘broadly formulated interests justifying the general applicability of government mandates’ and ‘scrutinize the asserted harm of granting specific exemptions to particular religious claimants.” (P. 60 (quoting O Centro Espirita).) As Sykes explains, the two public interests that the government advances—“public health” and “gender equality”—are stated “at such a high level of generality” that it is “impossible to show that the mandate is the least restrictive means of furthering them”: “There are many ways to promote public health and gender equality, almost all of them less burdensome on religious liberty.” (Pp. 61-62.) The supposedly compelling governmental interest therefore needs to be defined far more specifically than the government attempted to do.
Sykes soundly recognizes that the least-restrictive-means inquiry is simple. Assuming for the sake of argument that the government’s interest in broadening access to free contraception and sterilization is compelling, she observes that “the government has not even tried to satisfy the least-restrictive-means component of strict scrutiny, perhaps because it is nearly impossible to do so here.” (P. 62.) As she points out, there are many means of increasing access to free contraception—e.g., a public option for contraception insurance, tax incentives for contraceptive suppliers or consumers—that don’t involve dragooning religious objectors. (Pp. 63.) (Indeed, it would seem that the Obama administration has selected the means that is most restrictive of religious liberty.)
In the eight pages (pp. 138-146) that her dissent spends on the “compelling governmental interest” element, Rovner manages to completely ignore O Centro Espirita. Without even acknowledging the Supreme Court’s rejection of “broadly formulated interests,” much less trying to reconcile her position with the Court’s, she accepts “preventive health care” and “gender equality” as the compelling governmental interests at issue. (P. 141.)
Rovner’s remarkable response to Sykes on the least-restrictive-means inquiry is to assert that “I have my doubts about the feasibility of creating, let alone enacting,” alternative means of increasing access to contraception, “given that it has taken more than 60 years to enact a health insurance reform effort on the scale of the Affordable Care Act, and given the controversies that inevitably surround the reproductive rights of women.” (Pp. 146-147.) I hadn’t realized that a judge’s subjective “doubts” could satisfy strict scrutiny. But let’s move past that to the larger problem: Since when is the political convenience of adopting methods that violate religious liberty an argument in favor of those methods? How can that thinking possibly be reconciled with RFRA?
Rovner’s entire approach, she again confirms, is deeply hostile to RFRA. She asserts that the HHS mandate cannot be considered in isolation, and that the “relevant question … is not whether the government feasibly may ensure access to contraceptive care through other means, but whether it may feasibly ensure access to all types of care to which employers might object on religious grounds.” (P. 148.) Her statement of the “relevant question” is flatly inconsistent with what the Court in O Centro Espirita recognized as the “more focused inquiry required by RFRA and the compelling interest test.”