Symposium: Adjudicating “substantial” burdens

Frederick Mark Gedicks is Guy Anderson Chair and Professor of Law at Brigham Young University. He has authored numerous articles on religious exemptions and the ACA contraception mandate. This post reflects his personal views and not necessarily those of Brigham Young University.

It is a bedrock principle of Anglo-American law that “no man is allowed to be a judge in his own cause,” as James Madison put it in Federalist 10. The reasons are obvious, but Madison spelled them out anyway: “His interest would certainly bias his judgment and, not improbably, corrupt his integrity.” The Supreme Court should apply this principle in the cases consolidated as Zubik v. Burwell.

The “contraception mandate” of the Affordable Care Act categorically exempts the health plans of churches and other “houses of worship,” while providing an “accommodation” from the mandate for the plans of religious colleges and universities, hospitals, social service agencies, and other such religious non-profits. A non-profit that is not categorically exempt may nevertheless opt out of the mandate by providing the government with a “self-certification” – written notice of the contraceptives to which it objects and the name and contact information of its health insurer or third-party administrator (TPA). The government then notifies the insurer or TPA of its legal obligation to provide directly to plan participants the contraception coverage that the nonprofit’s plan declines to provide. (A religious non-profit may also self-certify directly to its insurer or TPA.)

The religious non-profits in these cases claim that self-certification “substantially” burdens their anti-contraception beliefs under the Religious Freedom Restoration Act (RFRA), by “triggering” or facilitating coverage of contraceptives by insurers and TPAs. The linchpin of their argument is that courts may review only the sincerity of this claim: Once a non-profit claimant honestly pleads that self-certification constitutes a “substantial” religious burden, the substantiality of the burden is conclusively established and immune from challenge by the government or review by the courts.

This argument misconceives the law. It ignores Congress’s purpose in restricting RFRA relief to “substantial” religious burdens, it misunderstands the religious-question doctrine, and it undermines both religious-exemption policy and the rule of law.

RFRA originally did not specify the weight of the burden on religion that would justify exemption relief. It was only during the final debate that Senators Edward Kennedy and Orrin Hatch, RFRA’s Senate floor managers and principal co-sponsors, proposed that relief be limited to “substantial” religious burdens. They did so to address powerful concerns that RFRA would impose unacceptable costs on prison and public school administration. (Congress intended RFRA to apply to all government action; City of Boerne v. Flores (1995) later limited it to federal government action.) Kennedy and Hatch urged that the amendment would relieve government from having to satisfy RFRA’s compelling-interest and least-restrictive-means tests for actions having only an “incidental” or “some” effect on religion. Congress obviously did not intend that prisoners, students, and other claimants could define “substantial” however they like; this addition makes sense only if courts, not claimants, determine its meaning.

What about the so-called “religious-question doctrine”? This doctrine prohibits courts from deciding cases by answering theological questions, but not from deciding cases on the basis of secular principles of law, even when the answer to a theological question seems relevant. The Court made this clear in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), in which it found that a “ministerial exception” exempts religious congregations from federal employment laws when they hire or fire clerical leaders. The Court held that the Religion Clauses prohibit courts from defining a Lutheran minister for a Lutheran congregation.

But the Court did not hesitate to define “minister” in order to apply the exception. It held the plaintiff a “minister within the meaning of the exception,” based on “the formal title given [her] by the Church, the substance reflected in that title, her own use of that title, and important religious functions she performed for the Church” – factors the Court came up with on its own. If the Court is going to relieve religious employers of significant liability, then obviously the Court itself needs to police the boundaries of that exception, lest employers push those boundaries so far that the exception swallows the rule. The Court may not define the meaning of “minister” for the religious purposes of Lutherans, but it, and not Lutherans, must define “minister” for the secular purpose of applying the ministerial exception.

Who should decide whether a religious burden alleged under RFRA is “substantial”? Burwell v. Hobby Lobby Stores seemed to say that only RFRA claimants may make this judgment – a very bad idea, for the same reason that religious employers should not decide which of their employees are “ministers” lacking the protections of federal employment law. Of course, Hobby Lobby might only stand for the unobjectionable proposition that the courts have no business deciding the theological consequences for employers of supplying contraceptives in their health plans. But courts can and must decide whether a burden is “substantial” in applying RFRA. Leaving that decision in the hands of exemption claimants would effectively read “substantial” out of RFRA’s text and subvert Congress’s reason for adding it in the first place.

Respecting a non-profit’s belief that self-certification makes it complicit in its insurer’s or TPA’s subsequent distribution of contraceptives does not require courts to decide that self-certification is a “substantial” religious burden under RFRA. If a court may formulate a secular definition of “minister” to police the boundaries of the ministerial exception, it may equally formulate a secular definition of “substantial” to police the boundaries of RFRA exemptions. The common law has developed rich and sophisticated doctrines that specify the bounds of secondary criminal or civil liability – doctrines that mark the limits, for example, of accomplice liability, factual or “but for” causation, liability when others intervene, and liability for defective products. A court may properly define a “substantial” burden by reference to these secular legal principles, by asking whether they would hold a RFRA claimant culpable or liable if its claim of complicity were raised in connection with criminal or civil liability.

For example, the contraception mandate requires health plan insurers to offer contraception coverage through the plans they sell or directly to employees and dependents when a religious employer opts out. Nothing a religious non-profit does can “trigger” contraception coverage, as the claimants in these cases have argued, because insurers are legally charged to provide this coverage regardless of whether a non-profit opts out. In short, self-certification is not even a “but for” cause of contraception coverage, let alone a proximate one.

Secular principles of causation have long held that a person cannot be held legally responsible for harms the person did not factually cause. The lower court determinations in these cases that self-certification does not “trigger” contraception coverage were not interpretations of claimant theology prohibited by the religious-question doctrine, but secular legal judgments that self-certification is not a “substantial” burden under RFRA because it does not factually cause the contraception coverage to which the claimants object.

A comparable analysis applies to TPAs of self-insured plans. The plaintiffs in these cases have argued that the interaction of self-certification with certain requirements of ERISA makes self-certifying non-profits “but for” causes of the contraception coverage TPAs subsequently provide to employees. But even if this were true, factual causation is not a legally sufficient basis for liability under secular principles of causation, especially in case of harmful products. Products-liability law generally precludes responsibility for harms caused by products one did not sell or distribute. By self-certifying, a religious employer removes itself and its health plan from the distribution chain for contraceptives, which instead are distributed directly to employees by its TPA. Again, the denial of RFRA relief here is not a prohibited rejection of claimant theologies of complicity, but a legal judgment that secular principles of civil liability do not impose responsibility in comparable circumstances. The burden of self-certification, therefore, is not “substantial” even for non-profits with self-insured plans. (I have elsewhere explained in detail how courts may use principles of tort liability to adjudicate the substantiality of burdens alleged by the claimants in this case.)

Madison was right. Leaving RFRA claimants as the sole judges of whether a law “substantially” burdens their religious exercise will inevitably damage both RFRA and their religions. No one can make impartial judgments about a matter that so deeply implicates self-interest, and no one will respect such self-interested judgments – or the statute that enables them. Knowing that their claims of “substantial” burden are not subject to judicial review, religious non-profits will also be tempted to shape theologies and inflate burdens to meet the requirements of RFRA litigation. The stakes are especially high when, as here, a RFRA exemption would impose the costs of living the accommodated religion on those who believe and practice differently, as Ira Lupu and Robert Tuttle show in their contribution to this symposium. Such cost-shifting exemptions are a classic Establishment Clause violation, privileging practitioners of exempted religions at the expense of those who practice other religions or none at all.

The lower courts in these cases rightly refused to decide whether self-certification makes a religious non-profit theologically complicit in sin. The courts stood on firm constitutional ground by relying on secular legal principles to find that self-certification is not a “substantial burden” under RFRA.