Bench Memos

Reply to Lederman on “Substantial Burden”—Part 2

See Part 1

Let’s now consider Georgetown law professor Marty Lederman’s response to the second point in my original post. In that second point, I contested the fundamental premise of Marty’s argument—that, in order for employers who object to the HHS mandate to meet the “substantial burden” threshold under RFRA, it is important that federal laws place substantial pressure on them to provide insurance in the first place. In addition, I went further and posited the “modest proposition that people have religious-liberty rights under RFRA in how they carry out all the activities that they freely choose to engage in, not just in how they do the tasks that the federal government places substantial pressure on them to do.”

What is essential to have in mind for purposes of this post is that my supplemental “modest proposition” is not the opposite of Marty’s fundamental premise. In other words, if Marty were to succeed in establishing that my “modest proposition” is wrong, he would not thereby simultaneously establish that his fundamental premise is right. Yet Marty dedicates nearly all of his response only to arguing that my “modest proposition” is wrong.

(I’m very open, by the way, to the possibility that my “modest proposition” is wrong. Perhaps it should be restricted to some range of ordinary activities, or perhaps substantial pressure from some source is necessary, or perhaps some other limitation is needed. I can’t claim to have fully digested Marty’s arguments against the proposition, and I suspect that we may be talking past each other.)

More importantly, in the course of his argument, Marty abandons his own fundamental premise. The easiest way to illustrate this is by examining his responses (and non-responses) to the questions I posed.

A. Here is one of my hypotheticals:

A newly enacted federal law requires that any store that sells beef to the public must also sell comparable pork products. The owner of a kosher deli charges that the law violates his rights under RFRA. In determining whether the law imposes a substantial burden on the owner’s exercise of religion, would a court really find it significant that federal law does not require the deli owner to sell beef?

Marty purports to take on my hypothetical, but he doesn’t directly answer the question I pose. Instead, he attributes to me a different question:

Wouldn’t such a law impose a substantial burden on a kosher butcher, even though he would still have the choice to go into another line of work?

And here is the remarkable answer that he gives to that question:

Well, yes, perhaps it would–if it effectively put the butcher to a choice between vioalting [sic] religious tenets and closing up a shop that he has worked years to develop, and to which he has devoted most of his working life. 

Two comments on Marty’s answer:

1. Imagine 100 owners of separate kosher delis who challenge the law under RFRA. Under Marty’s answer, some of them—those who have “worked years to develop” their business and devoted “most” of their working lives to it—would be substantially burdened by the law, and others, with the same religious convictions but without so many years dedicated to their business, wouldn’t. That strikes me as an amazing result—one so implausible that it ought to call into doubt his whole approach.

2. Note that Marty’s answer doesn’t turn on whether or not federal law requires the deli owner to sell beef. Thus, Marty’s implicit answer to the actual question I asked is: “No, for purposes of conducting the substantial-burden inquiry, a court would not find it significant that federal law does not require the deli owner to sell beef.” In short, Marty is abandoning his fundamental premise that it is important to the substantial-burden inquiry that federal laws place substantial pressure on the person to engage in the broader activity that is burdened.

B. I also posed a hypothetical question about Adell Sherbert, the plaintiff in the landmark case of Sherbert v. Verner:

Are we really to believe that her Free Exercise claim would have failed if, say, she was from a wealthy family and, by some objective standard, was under no pressure to work (but in fact did want to)?

Marty’s remarkable answer: “yes, I assume the Court would not have come out the same way in that hypothetical case, since ‘the pressure upon her to forego [her sabbath observance]’ would not have been ‘unmistakable.’” (Marty’s italics.)

Some comments:

1. Marty’s answer strips the Court’s reference to “unmistakable” “pressure” from its context. Here’s how the Court in Sherbert explains why the “pressure on her is “unmistakable”:

The [agency] ruling [denying Sherbert unemployment compensation] forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.

In exactly the same way, the HHS mandate forces objecting employers to choose between following the precepts of their religion and incurring huge fines, on the one hand, and abandoning one of the precepts of their religion in order to stay in business, on the other hand.

2. Marty’s answer would have the courts conducting fact-intensive inquiries into the financial well-being of RFRA plaintiffs. The Court in Sherbert conducted no such inquiry and said nothing about Sherbert’s financial condition (beyond, of course, noting her unemployment).

3. Marty’s answer would seem to mean that “a fine imposed against [a person] for her Saturday worship” would not qualify as a substantial burden, and thus would not violate the person’s religious-liberty rights, if the person is wealthy. From the fines of five dollars that had been imposed on the fathers in Wisconsin v. Yoder, I think that it’s clear instead that “substantial” is a very low objective threshold, meaning no more than non-trivial.

C. I also asked Marty why, if his fundamental premise were correct, the Supreme Court didn’t require Adell Sherbert to establish that state laws placed substantial pressure on her to work. Marty doesn’t directly answer that question. But again, the fact that he thinks that Sherbert’s (presumed) financial neediness is what makes the burden substantial shows that he is abandoning his position that it is important to the substantial-burden inquiry that laws be the source of substantial pressure to engage in the broader activity that is burdened.

*  *  *

To sum up: For the reasons set forth in my Part 1 post, Marty’s basic argument fails because federal law continues to place substantial pressure on employers to provide health insurance. Even if that weren’t so, as I discuss in this Part 2 post, Marty abandons his position that it is important to the substantial-burden inquiry that federal laws be the source of substantial pressure to engage in the broader activity that is burdened.

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