Private: How the 'Contraceptive Mandate' Cases Could Impact State Law

 

* The views expressed in this post are the author’s own, and do not reflect those of any institution with which he is affiliated or employed.

 

As the Supreme Court heard oral arguments today in the “contraceptive mandate” cases, one question that everyone is grappling with has to do with the ramifications of the decision. These cases concern whether the Religious Freedom Restoration Act (RFRA), which prohibits federal law from imposing a substantial burden on a person’s exercise of religion, excuses for-profit corporations from providing access to contraceptive coverage to their employees. For the Court to rule in favor of the corporations, it must hold that (1) a corporation has free exercise rights under the statute, (2) that the burden the mandate imposes is substantial and (3) the interests the mandate serves are not compelling. Ruling in favor of the plaintiffs on any of these grounds will have substantial effects for doctrine across the board.

 

However, one possible result that has received less (if any) attention is the effect that the Court’s holding will have on state laws relating to numerous areas including antidiscrimination, insurance coverage, land use and corporations law. There is good reason for this oversight. In Boerne v. Flores, the Supreme Court held that RFRA could not limit state law—so the Court’s holding as to the reach of RFRA will not inhibit the reach of state law. And because this is a statutory holding, and the Court shows no immediate signs of re-incorporating the RFRA test into constitutional doctrine, the effects on First Amendment doctrine (which does limit state law) will be limited.

 

But there is, nonetheless, a good chance that a loss for the government will affect state regulation. First, in the area of land use, the Religious Land Use and Institutionalized Persons Act (RLUIPA), unlike RFRA, has does (as of now, at least) apply to localities. While there may be textual reasons why RLUIPA could be read differently that do not bear deep excavation, the bottom line is that RLUIPA was basically modeled after RFRA. If corporations can invoke RFRA to escape federal regulation, they may well be able to invoke RLUIPA to escape basic zoning regulation, from which, so far, only churches and religious institutions have so far been exempt.

 

More worryingly, after Boerne, a number of States passed mini-RFRAs that were modeled after the federal RFRA. Because the statutes were modeled after federal law, many state courts rely on federal interpretation of RFRA to interpret their respective state RFRAs (even though, as at least one state court has recognized, they are not bound to do so). The brief filed by California and other states lists several cases that adopt this approach. (Full disclosure—while the views in this post are solely mine, I was a co-author of that brief). Thus, the parade of horribles that has been advanced as to how federal regulation will be limited if corporations can claim RFRA rights, or if the burdens here are construed as substantial, may well be replicated in states with mini-RFRAs. And if successful, state law contraceptive mandates (28 states have these mandates, but many of them lack mini-RFRAs), employment protections, workplace regulations, are examples of state regulation that may come under challenge. Indeed, depending on the corporate law rules that the Supreme Court reads into RFRA, state corporate governance itself may be affected (in ways that are beyond the scope of this post).

 

Only time will tell what the effects of the holding will be, of course, but it is quite foreseeable that a holding against the government in this case will lead to some pitched state court litigation.