Bench Memos

More on the Accommodation Alternative

In the wake of yesterday’s Hobby Lobby ruling, there is, not surprisingly, quite a lot of speculation whether the so-called HHS mandate “accommodation” satisfies RFRA. With apologies for heading into the weeds, I offer some tentative observations on this matter:

1. On SCOTUSblog, Lyle Denniston states that it is “rather difficult” to read passages from Justice Alito’s majority opinion and Justice Kennedy’s concurrence “as anything other than a declaration” that the accommodation is “good enough.”

I disagree. Alito says explicitly, “We do not decide today whether an approach of this type [i.e., the accommodation] complies with RFRA for purposes of all religious claims.” He states only that the accommodation “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” As he puts it in a footnote, “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.” (Emphases added.)

In short, Alito clearly doesn’t reach the question whether the religious nonprofits currently subject to the accommodation may successfully challenge it under RFRA on the ground that facilitating insurance coverage by a third party (of morally objectionable drugs and devices) violates their religious beliefs. 

Kennedy’s language, I will acknowledge, is murkier. Denniston focuses on a passage in which Kennedy, in discussing the accommodation, states that “RFRA requires the Government to use this less restrictive means.” But, in context, this seems like just an imprecise way of stating that the government loses in Hobby Lobby because a less restrictive means is available (whether or not that less restrictive means would itself satisfy RFRA). Further, given that no one briefed or argued in Hobby Lobby whether the accommodation would satisfy RFRA and given the serious legal questions about how the accommodation would actually work, I think that it would be extraordinary to read into Kennedy’s brief remarks any judgment that the accommodation is fine. (Denniston,  I should note, nicely highlights some of the questions about how the accommodation would work and concludes that challengers to the accommodation “would have quite a strong argument” that the issue “actually remains unresolved.”)

2. As Denniston reports, yesterday evening the Supreme Court, over the recorded dissents of Justice Breyer and Justice Sotomayor, temporarily barred enforcement of the accommodation against Wheaton College, a religious nonprofit. If the justices in the Hobby Lobby majority had concluded that the accommodation satisfies RFRA, they would have had no reason to grant this temporary relief. Note also that the justices, in footnote 9 of the Hobby Lobby opinion, describe the relief from the accommodation that they previously provided the Little Sisters of the Poor in a way that is reasonably read, and has evidently already been read, to support extending that relief to other religious nonprofits who are challenging the accommodation.

To be sure, it’s possible that the justices in the majority have formed the tentative judgment that the accommodation is okay if the objecting employer isn’t required to complete the self-certification form that doubles as an authorization to its third-party administrator. But, as Denniston points out, government lawyers have argued that, without the employer’s authorization, the third-party administrator won’t have the legal authority to provide the objected-to coverage.

3. I emphasize again that the fact that the Court recognized the accommodation as a less restrictive means in no way implies that the Court must think that the accommodation itself would satisfy RFRA. Indeed, just three days before the Court’s ruling in Hobby Lobby, the Chief Justice illustrated the principle in a closely analogous context. As I discuss in point 3 of this post on the ruling on the buffer-zone law, the Chief Justice, in the course of discussing whether the law was narrowly tailored, “identif[ies] a number of less-restrictive alternatives that the Massachusetts Legislature might have adopted” while making clear that he is not endorsing the constitutionality of any of those alternatives.

Under RFRA, the government has the duty to show that a burden on a person’s exercise of religion is the least restrictive means of furthering a compelling governmental interest. When the Court identifies a less restrictive means than the one the government has adopted, that suffices to show that the government hasn’t met its duty.

4. On the Corner, Matt Bowman, who has been litigating lots of challenges to the HHS mandate (including the accommodation), reminds us that the Seventh, Tenth, and D.C. Circuits have already ruled that the HHS mandate does not serve a compelling governmental interest. As Bowman points out, nothing in Hobby Lobby overrides circuit precedent on that issue. Given the clarity that Hobby Lobby provides on the threshold question of substantial burden, it ought to be easy for challengers to the accommodation to get past that threshold. Once they do so, those in the Seventh, Tenth, and D.C. Circuits will prevail on lack of a compelling governmental interest.


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