Bench Memos

Law & the Courts

Taking Religious Liberty Seriously

On Tuesday, the Supreme Court did something that many lower courts—including seven courts of appeals—should have done long ago: it took the Little Sisters of the Poor’s religious objections seriously and asked if the government has any means to distribute contraceptives that doesn’t involve conscripting the nuns.

The Court’s order—issued just a few days after the oral argument—shows that those courts messed up badly.

Every court to rule the wrong way in the HHS Mandate cases has started off—and, in most cases, ended—by failing to take the religious ministries’ objections seriously. In their garbled conclusion that the so-called accommodation doesn’t impose a substantial burden on the religious ministries’ exercise of religion, those courts have rejected the religious ministries’ understanding of their own religious obligations and have substituted the courts’ belief that compliance with the accommodation is religiously permissible after all. That is why the courts ruled that there was no burden on religious exercise at all. But judges have no authority or competence to second-guess a person’s religious beliefs. As Justice Kennedy said last week at oral argument, for purposes of RFRA’s substantial-burden analysis, it is enough that the ministries sincerely objected on religious grounds and that the government threatened to punish their objection with massive fines.

Had lower courts treated the Little Sisters’ beliefs properly, the courts would have moved on to the strict-scrutiny step in the RFRA analysis—whether the government can show that its burden on religious liberty advances a compelling governmental interest via the means least restrictive of religious liberty. They would then have explored questions like the one the Court asked this week: i.e., does the government have a way to accomplish its objectives that is less restrictive of religious liberty? That is precisely the kind of question that should have been sorted out in the lower courts, if they had been doing the analysis that RFRA explicitly requires.

The Court’s order also ought to be an embarrassment to the Obama administration, which has misled those courts with spurious arguments that, as five dissenting Tenth Circuit judges said about the Little Sisters case, are “clearly and gravely wrong” and “contrary to all precedent concerning the free exercise of religion.” Alas, this is part of a broader pattern for the Obama administration. It did the same thing in Hosanna-Tabor, where it made the “amazing” claim (to borrow Justice Kagan’s epithet) that churches have no more right to pick their ministers than social clubs do their leaders, and in Hobby Lobby, where it argued (baselessly) that no for-profit corporation can ever exercise religion. Both arguments bamboozled some lower courts, but collectively garnered just two out of eighteen available votes at the Supreme Court (zero in Hosanna-Tabor, two in Hobby Lobby).

The Supreme Court should not now permit the government to answer the Court’s question with bad arguments about less restrictive alternatives. That’s what the D.C. Circuit did, when it accepted both the government’s substantial burden and least-restrictive-means arguments. (The amicus brief submitted by the Ethics and Public Policy Center, the think tank I head, exposes the flaws in the D.C. Circuit’s application of RFRA’s strict-scrutiny test.) Instead, the Court should insist on actual proof from the record—not mere speculation and post-hoc litigation posturing—that the many alternatives that the Little Sisters have offered (and, no doubt, will offer) simply cannot suffice. The government’s prior heavy reliance on its frivolous, and now-defunct, substantial-burden argument is a telling indication that no such evidence exists.

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