Bench Memos

The Sixth Circuit Shouldn’t Be Ignoring SCOTUS’s Hobby Lobby Decision

Lower courts are not supposed to ignore Supreme Court rulings. However, as Ed Whelan noted in a recent post on this blog, that is exactly what circuit courts have done by refusing to apply the favorable interpretation of the Religious Freedom Restoration Act that the Supreme Court adopted in the Hobby Lobby case. In doing so, they have put the religious liberty of millions of Americans at risk. Ed Whelan’s prescription is correct, the Supreme Court should review and reverse at least one of the relevant cases in order to reaffirm that RFRA protects every American’s religious liberty.

The Sixth Circuit’s second opinion in a case titled Michigan Catholic Conference v. Burwell exemplifies the “elementary mistake” that Whelan alluded to in his recent post. That decision is particularly illustrative because it was written after the Supreme Court ordered the Sixth Circuit to reconsider its first opinion in light of Hobby Lobby. Incredibly, the Sixth Circuit responded to the Supreme Court by issuing a second decision that contradicted Hobby Lobby. The Supreme Court should not tolerate this sort of misconduct, especially not in an area as important as protections for religious liberty.

On June 11, 2014, the Sixth Circuit issued its first opinion in the Michigan Catholic Conference case. It rejected the Michigan Catholic Conference’s (“Conference”) request for an injunction against the Health and Human Services Mandate (“Mandate”). This challenge related to a modified version of the mandate that the Obama administration offered as an accommodation to religious adherents. Under the accommodation, employers may not have to directly pay for coverage for abortifacients, sterilizations, and contraceptives, but the challengers argued that they were still complicit in providing those drugs and services to their employees.

The court refused to scrutinize the accommodation under RFRA because it concluded that the regulation did not “substantially burden” the plaintiffs’ religious exercise. The court reached this conclusion by defining the words “substantial burden” in a manner that the Supreme Court would soon reject, in Hobby Lobby.

RFRA protects religious liberty from laws that impose “substantial burdens” on religious exercise. A law could impose a substantial burden on religious exercise in two different scenarios. First, such a burden could arise where the religious consequences of complying with a law would be substantial. Under this interpretation, a court would have to determine whether the relevant law caused a religious adherent to commit a significant sin. Alternatively, a substantial burden might occur when the governmentally imposed consequences of refusing to comply with a law are significant. For example, a law would impose a substantial burden on religious exercise if it inflicted a significant fine on a religious adherent whose beliefs prevented him from complying with the law. The Sixth Circuit chose to adopt the first interpretation when addressing the Conference’s complaint.

The Conference argued that the accommodation substantially burdened their religious exercise by forcing them to decide between committing sins such as “scandal,” which they defined as “encouraging . . . other persons to engage in wrongdoing,” or paying large fines. The Sixth Circuit rejected this argument, finding that since the accommodation did not require the Conference to provide, pay for, or facilitate access to the objectionable drugs, it did not cause them to commit a significant sin. Apparently, the Sixth Circuit thought RFRA empowered it to determine that the Michigan Catholic Conference did not understand Catholicism.

A few months later, in Hobby Lobby, the Supreme Court adopted the second interpretation of “substantial burden.” A law imposes a substantial burden on religious exercise whenever it imposes a significant governmental punishment on adherents who refuse to comply with the law for religious reasons. The Court found that the original HHS Mandate imposed a substantial burden because it forced the plaintiffs to violate their religion or “pay an enormous sum of money.”

The Court rejected the interpretation adopted by the Sixth Circuit, and explained that RFRA does not allow judges to ask whether plaintiffs’ religious beliefs are “mistaken or insubstantial.” According to the Court, that is a question that “federal courts have no business addressing.”

The Sixth Circuit’s interpretation of “substantial burden” is far-fetched, but it was  arguably legally permissible until the Supreme Court decided the matter. Once the Supreme Court rejected its interpretation, the Sixth Circuit was obligated to follow the Supreme Court’s opinion.  Unfortunately, it has refused to do so.

The Conference appealed the Sixth Circuit’s decision to the Supreme Court. The Supreme Court vacated the decision and remanded the case “for further consideration in light of” Hobby Lobby. The Supreme Court wanted the Sixth Circuit to apply the proper substantial burden analysis.

On August 21, 2015, the Sixth Circuit issued a second opinion in Michigan Catholic Conference v. Burwell, applying the substantial burden analysis that the Supreme Court had rejected. The court acknowledged that “some Plaintiffs will still believe that they are morally complicit in sin,” but it once again rejected those beliefs as mistaken or insubstantial. Ignoring the Supreme Court’s admonition to avoid that exact analysis, the Court noted that “nothing in Hobby Lobby changes this analysis.”

The Sixth Circuit went further than merely claiming that Hobby Lobby did not conflict with its opinion. It claimed that there were “at least some indications” that the Supreme Court agreed with its analysis. The court noted that Hobby Lobby “discussed the accommodation favorably when compared alongside the more onerous” requirements of the original Mandate. Read in context, the Supreme Court’s favorable discussion of the accommodation had no bearing on whether the accommodation represented a substantial burden on religious liberty. It did not, in any way, support to the Sixth Circuit’s analysis.

RFRA requires a two-step analysis. The substantial burden analysis is only the first step. If a plaintiff satisfies that requirement, the government can still prevail by demonstrating that a given law is the least restrictive way of furthering a compelling governmental interest. The Supreme Court only discussed the accommodation in order to demonstrate that the government had failed to prove that there were no possible alternatives to the Mandate. That was the extent of the Court’s allegedly favorable discussion of the accommodation. The Court expressly refused to determine whether the accommodation imposed a substantial burden on religious exercise since that question was not before the Court. It is impossible to comprehend how the Sixth Circuit thought this supported its analysis on an entirely unrelated point.

The Supreme Court also declined to determine whether the accommodation was the least restrictive alternative possible, as opposed to one of many less restrictive alternatives. It simply found that the accommodation was less restrictive than the original mandate. Once it made that determination, there was no need to go any further. The Sixth Circuit’s second opinion should have analyzed whether the government had additional options that were even less restrictive than the accommodation. That was what the Supreme Court intended when it remanded the case.

Had the Sixth Circuit applied the proper substantial burden analysis, it would have found that the accommodation imposed such a burden. This is not a close question. All of the parties to the litigation agreed that the Conference had sincere religious objections to the accommodation, and that it would have had to pay significant fines—indeed, the same fines found in Hobby Lobby to be substantial—if it refused to comply with the law.

Perhaps at that point, the government would have been able to demonstrate that the accommodation represented the least restrictive method that could achieve its compelling goals. If that were the case, the Sixth Circuit could have ruled for the government in complete harmony with Hobby Lobby. But that question remains unanswered, because the Sixth Circuit refused to conduct that inquiry.

Instead, the court doubled-down on the claim that it had the power to second-guess the validity and importance of religious adherents’ beliefs. Five appellate courts have sided with the Sixth Circuit in clinging to this misinterpretation that endangers the religious liberty of millions of Americans.  In a recent opinion, dissenting judges on the Tenth Circuit described this as a doctrine that “will not long survive” because it is “contrary to all precedent.”  The Supreme Court ought to act swiftly to fulfill their prediction and protect religious liberty for every American.

Howard Slugh Howard Slugh is an attorney practicing in Washington, D.C. He is the co-founder of the Jewish Coalition for Religious Liberty.

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