The Financial Burden of Substantial Burden

Ed recently linked to a piece by law professor and Religion Clause expert Michael McConnell, who blogged at the Volokh Conspiracy about the Hobby Lobby arguments a couple of weeks ago. In the piece, Professor McConnell explains why Hobby Lobby’s religious exercise would be substantially burdened by forcing it to drop coverage, even if doing so would save the company money. Clearly, religious adherents do many things that are not profit-maximizing, so assuming that they always act in a profit-maximizing way is simply wrong.

Moreover, there is no information about the cost differential in the record, and it would be highly inappropriate for the court to speculate on such an important issue. Even if there were some way to come up with accurate average costs of health insurance, average costs say nothing about what Hobby Lobby contributes for its own employees’ health care. Nor is it reasonable to assume that all Hobby Lobby employees get subsidies. If these were serious issues, the government would have sought to make its record in the lower courts. 

McConnell also makes the important point that Hobby Lobby was providing generous health insurance and wages long before the phrase “Affordable Care Act” touched paper in Congress. Forcing Hobby Lobby to drop health coverage burdens their religious exercise because their religious beliefs require them to provide generous benefits to employees. All that’s required is that Hobby Lobby have a sincerely-held religious belief and that the government’s policy put substantial pressure on it to act against those beliefs. This has been unambiguous statutory law under RFRA for 20 years and clear Supreme Court precedent for more than 30 years, since Thomas v. Review Board of Indiana Employment Security Division. Religious adherents don’t have to get a “pastor’s note” to meet this legal standard. Nor do they have to show that violating a religious duty would be a “go to Hell immediately” sin (which would be a problem for religions that don’t believe in Hell). This is because no court is competent to judge a religious person’s theology (although some judges seem to think they are).  

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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