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.
Justice Ginsburg’s dissent found no substantial burden, concluding that the “connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial.” The employees’ identified religious belief was opposition to abortion. Standing between Hobby Lobby and abortion was a woman’s independent choice to use contraception. According to Justice Ginsburg:
It is doubtful that Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby's or Conestoga's plan will not be propelled by the Government, it will be the woman's autonomous choice, informed by the physician she consults.
Justice Alito, however, vigorously disagreed in language that should cause concern for the government in Zubik. He accused Justice Ginsburg of asking a “question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable).” The employers’ religious belief about the regulations and the embryo, he wrote, “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Let’s call this the complicity burden. In such circumstances, Alito concluded, the courts’ only role is to determine “whether the line drawn reflects ‘an honest conviction.’”
These differing accounts of substantial burden are at stake in Zubik.
In order to accommodate the religious nonprofits, the government removed the monetary fines at issue in Hobby Lobby. There is no penalty for religious nonprofits that opt out of contraceptive coverage. Instead, if they notify the Department of Health and Human Services (HHS) that they oppose the mandate and provide to HHS the name and address of their insurance company, no penalties can be assessed. Once the notification is received, the government requires insurance companies to take up the burden that the employers have dropped. Thus, according to the government, any substantial burden on religion has disappeared. Instead of being forced to provide and pay for contraceptive insurance, religious nonprofits notify and don’t pay.
In Hobby Lobby, Justice Alito included the penalties in his substantial burden analysis, so his opinion arguably supports the government.
The nonprofits see it differently. They make a variety of complicity-based moral arguments against the notification process, arguing that their religious beliefs don’t allow them to facilitate contraceptive coverage to any degree. Some plaintiffs argue that their notification of the government “triggers” contraceptive coverage. Others claim that their relationship with their insurers causes contraceptive coverage. The level of complicity is affected by the technical details of the different plaintiffs in the cases. Some plaintiffs are insured; some are self-insured; and others are parts of church plans. These details affect which entity in the end provides the insurance coverage and how far removed it is from the nonprofit employers. Although the courts care about those details, the plaintiffs don’t; they oppose complicity of any sort, arguing that any complicity with the mandate is a substantial burden on religion.
In all seven cases to be reviewed by the Court, the appeals courts rejected the complicity arguments and found no substantial burden for a variety of similar reasons. Without fines or penalties, they wrote, there is no substantial burden. The notification form is not a trigger, they concluded, because federal law (not notice to HHS) triggers contraceptive coverage. In an alternative analysis, filling out an administrative form is a “de minimis” task because “identifying one's TPA [third party administrator] in a letter to HHS is at most a minimal burden and certainly not a substantial one.”
The danger is that some Justices may see in that reasoning the “attenuated” logic of Justice Ginsburg rather than the “honest conviction” approach of Justice Alito. The Eighth Circuit (the only appeals court to rule for the nonprofits) concluded that the nonprofits faced “significant monetary penalties” if they refused to apply for the accommodation; that burden “mirrors the substantial burden recognized by the Supreme Court in Hobby Lobby.” The court relied heavily on Justice Alito’s reasoning that courts cannot decide if a religious belief about complicity is reasonable or unreasonable.
The courts in the seven granted cases were reluctant to conclude that Hobby Lobby robbed courts of any role in identifying a substantial burden. Some of them explicitly rejected the ridiculous idea that a conscientious objector to war is substantially burdened by applying for CO status because he doesn’t want someone else to take his place.
If the Court endorses the complicity burden, Zubik will be even more startling and broad than Hobby Lobby.
We will learn by June if the religious nonprofits have to bear any burden and if religion, unlike contraception, is cost-free.