by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law
Now that the Supreme Court has granted cert. in Zubik v. Burwell on seven related religious nonprofits’ cases, we will have an opportunity to learn if Hobby Lobby was a “decision of startling breadth,” as Justice Ginsburg predicted in her dissent. In Zubik, the religious nonprofits allege that the government’s accommodation of the contraceptive mandate of the Affordable Care Act (ACA) violates the Religious Freedom Restoration Act (RFRA). An important part of the case turns on what the Court views as a “substantial burden” on the exercise of religion.
Under RFRA, a plaintiff must demonstrate as a threshold matter that the government substantially burdened his exercise of religion. Only then does the government have to meet the most difficult test in constitutional law, namely that its action constitutes the least restrictive means of serving a compelling government interest. If the courts make it easy for plaintiffs to prove a substantial burden, each and every federal law can be constantly put to this strict standard.
The appeals courts in the nonprofit cases ruled that plaintiffs’ religious exercise was not substantially burdened by the accommodation. An Eighth Circuit opinion, however, suggests that those courts misread Justice Alito’s analysis in Hobby Lobby. Zubik will test just how deferential the Court intends to be toward religious plaintiffs who allege a substantial burden on their religion.
Hobby Lobby’s Substantial Burden
The contraceptive mandate of the ACA requires employers to include preventive health care services in their insurance coverage. Hobby Lobby involved a successful challenge to the mandate by religious for-profit employers who believe as a matter of faith that four covered contraceptives cause abortion. At the beginning of his opinion upholding the for-profits’ challenge, Justice Alito observed that if the employers did not provide contraceptive coverage, they would be taxed $100 per day for each affected employee, which could amount to $1.3 million per day and $475 million per year for employer Hobby Lobby, and $90,000 per day and $33 million per year for Conestoga Wood. That amount of money, Justice Alito concluded, is “surely substantial.”
Responding to the argument that the employers need not provide insurance in the first place, Alito then identified an alternative substantial burden. If at least one of their employees qualified for a government subsidy on the health care exchanges, the companies would be fined $2,000 per employee per year, totaling $26 million for Hobby Lobby and $1.3 million for Conestoga. Still substantial, in Justice Alito’s eyes.