Bench Memos

Law & the Courts

Doug Laycock Retracts in Little Sisters

I’m pleased to highlight that, on the afternoon before Wednesday’s Supreme Court oral argument, law professor Doug Laycock has effectively retracted his strange claim that the Little Sisters of the Poor and other petitioners challenging the HHS mandate accommodation don’t face a substantial burden on their exercise of religion within the meaning of the Religious Freedom Restoration Act. More precisely, Laycock has clarified that his position to the contrary rests entirely on his (mistaken) understanding of the details of how the regulations operate—details that Laycock says in his amicus brief are too “complex” for him to go into and that (as point 3 of my post linked above shows) he clearly doesn’t have a good grasp of.

Specifically, Laycock now acknowledges (here) that if the religious nonprofits are correct that the accommodation requires them Little Sisters “to contract with their insurance companies to provide contraception, that would clearly be a substantial burden in my view.” Further: “If they had to instruct or authorize their insurance companies to provide contraception at the insurer’s expense, that is a closer case, but I am inclined to view that as a substantial burden.”

As the Little Sisters’ reply brief makes clear, what the religious nonprofits “object to is the government’s insistence that they execute documents that the government itself deems necessary to its efforts to get contraceptive coverage to their employees.” In short, Laycock’s position that the accommodation doesn’t impose a substantial burden on the religious nonprofits’ exercise of religion rests on his misunderstanding of how the accommodation operates.

To restate the point somewhat differently: A person engages in an exercise of religion when he acts, or abstains from acting, for religious reasons. Laycock mistakenly believes that the operation of the HHS mandate accommodation does not require any action by the religious nonprofits and that its massive penalty scheme therefore does not substantially burden an exercise of religion. (His discussion of “absolute deference” and “substantial deference” on the substantial-burden question is a hopelessly confused way of making this point.) Because the religious nonprofits are indeed abstaining, for religious reasons, from executing the authorization that the government requires, they are engaged in an exercise of religion, and the massive penalty scheme indisputably imposes a substantial burden on that exercise (as the Supreme Court already decided in Hobby Lobby).

And, of course, that kind of straightforward application of the substantial-burden test—to reach a result Laycock evidently would agree with if he properly understood how the accommodation operates–is hardly the “mortal threat” to religious exemptions that the rest of Laycock’s brief frets about.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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