Symposium: Religious Questions and Saving Constructions : SCOTUSblog
Symposium: Religious questions and saving constructions
Ira C. Lupu is the F. Elwood & Eleanor Davis Professor of Law Emeritus, and Robert W. Tuttle is the David R. and Sherry Kirschner Berz Research Professor of Law and Religion, at George Washington University. They are the co-authors of Secular Government, Religious People (forthcoming, Eerdmans Publishing Co., July 2014).
Two powerful and opposing undercurrents run through the Hobby Lobby case. The first is the constitutional prohibition on courts resolving questions of religious doctrine. The second is the constitutionally prudent strategy of interpreting the Religious Freedom Restoration Act (RFRA) to limit the harms that employers may impose upon their employees.
1. RFRA and questions of religious doctrine
Referencing Sherbert v. Verner and Wisconsin v. Yoder, RFRA commands the government to “not substantially burden a person’s exercise of religion” unless the government can show that imposing the burden is “the least restrictive means of furthering [a] compelling governmental interest.” As Sherbert and Yoder perfectly illustrate, a burden on religion involves conflict between a person’s legal interests and her religious practices. What is rarely noticed, however, is that the collision of interests must meet two measures of substantiality, not just one. The conflict must involve, as in Sherbert, the imposition of substantial secular costs on the religiously compliant person. Less well noticed, the conflict also must involve substantial religious costs for those who comply with secular law. The Yoder Court barely mentioned the five-dollar fine that the state had imposed on the parents of children who did not attend school. Instead, the Court repeatedly and emphatically stressed the religious cost - a threat to the salvation of Amish parents and to the survival of the Amish community - that might have followed from compliance with compulsory education laws.
This second side of the “substantial burden” formula is deeply troubling. As reconfirmed by Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the state is constitutionally incompetent to answer questions of religious doctrine, such as who is fit for ministry. In some situations, of course, the government may choose not to dispute the religious substantiality of the burden. That was the government’s approach, albeit a losing one, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, in which the church claimed that hoasca tea was essential to its worship, and the government conceded that its prohibition on the tea substantially burdened the group’s religious exercise.
In the contraceptive mandate cases, however, the government has not conceded the substantiality of the religious costs of legal compliance. The Hobby Lobby companies assert that the coverage of certain services in an employer-provided health insurance policy will implicate their owners and them in the termination of pre-natal human life. The government’s response to that argument rests on the remoteness of the connection between the owners’ religious convictions and the independent decision by beneficiaries to make use of insurance coverage of contraceptives. The government argues, in effect, that compliance with the ACA mandate cannot involve the owners of Hobby Lobby in substantial religiously wrongful conduct because the allegedly sinful act - the use of certain contraceptives - is undertaken, if at all, by employees or their dependents who freely choose to take advantage of that coverage. This, the government contends, makes the religious burden of compliance with the ACA attenuated and therefore insubstantial.
How can the Court decide between these competing views of the religious significance of legal compliance? If the state is barred from answering religious questions, the government must accept Hobby Lobby’s assertion about its, or its owners, complicity in sinful acts … ..
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