Symposium: Punting on substantial religious burden, the Supreme Court provides no guidance for future RFRA challenges to anti-discrimination laws

Caroline Mala Corbin is Professor of Law at the University of Miami School of Law.

The legal question

Does filing paperwork in order to obtain a religious exemption from a law constitute a substantial burden on religious liberty? That was the main question posed by Zubik v. Burwell. In Zubik, religiously affiliated non-profit organizations argued that the Affordable Care Act’s contraception benefit violated the Religious Freedom Restoration Act (RFRA) by substantially burdening their religious conscience. Under RFRA, religious objectors need not comply with any federal law that imposes a substantial religious burden unless the government can demonstrate that the law passes strict scrutiny.

Notably, the contraception regulations actually exempted the non-profits from providing contraception. Once a non-profit certified that it is religiously opposed to contraception and notifies either its insurance carrier or the Department of Health and Human Services, the responsibility for contraception coverage shifted to its private insurance company. The non-profit did not have to provide, pay for, or even inform its employees or students of the separate coverage.

Despite the built-in opt-out, some religiously affiliated non-profits complained that the accommodation itself imposes a substantial religious burden in violation of RFRA. According to these non-profits, providing notice of their objections triggered the provision of contraception and hijacked their health plans, thereby making them complicit in sin.

The Supreme Court punt

Almost certainly because it was unable to muster a five-Justice majority, and wanted to avoid another four-to-four split, the Supreme Court avoided answering Zubik’s central question. After oral argument, the Supreme Court took the unusual step of asking the parties for supplemental briefing on its own proposed compromise. Although the parties still seem far apart, yesterday’s opinion expresses confidence that “contraception could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners” and that “both petitioners and the Government now confirm that such an option is feasible.” As a consequence, the Court washed its hands of the case, remanding it to the various courts of appeals with instructions to “allow the parties sufficient time to resolve any outstanding issues between them.”

The per curiam ruling underscores that the “Court expresses no views on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.” Justice Sonia Sotomayor’s concurrence, joined by Justice Ruth Bader Ginsburg, likewise emphasizes that the remand “does not. . . endorse the petitioners’ position that the existing regulations substantially burden their religious exercise.” In short, rather than declaring whether or not the existing accommodation imposed a substantial religious burden, or providing explicit guidance on how it would reach that decision, the Court punted.

The substantial-burden arguments

Among the many unanswered questions raised by Zubik is who decides what counts as a “substantial religious burden” for purposes of RFRA. The non-profits claiming a RFRA violation insisted that substantial burden is a subjective religious question for the religious objector alone to decide. They asserted that once a religious objector claims that a particular statutory requirement amounts to a substantial burden as a matter of religious belief, then, as long as the objector is sincere, it amounts to a substantial burden under RFRA as a matter of law. According to them, “courts have neither the authority nor the competence to second-guess the reasonableness of those sincere beliefs.” Failure to defer to objectors’ assessment of substantial burden is tantamount to passing judgment on their religious faith, which is barred by the Establishment Clause.

Most courts of appeals have rejected this claim, and rightly so. Automatic deference to religious objectors seeking religious exemptions (1) misreads the language of RFRA and (2) overlooks the courts’ authority to rule on factual and legal matters that are well within their institutional authority and competence. Ultimately, as the Sixth Circuit held, “[w]hether a law imposes a substantial burden on a party is something that a court must decide, not something that a party may simply allege.”

1. RFRA’s language

As RFRA’s language plainly states, strict scrutiny is triggered only by “substantial” burdens on religion, not all burdens on religion. To simply assume a substantial burden whenever a sincere religious objector claims one exists essentially reads the word “substantial” out of the statute. Indeed, those seeking an exemption are not likely to argue that the challenged law burdens their practice of religion, but not substantially. In short, without some objective evaluation of burden every sincere religious protestor would be entitled to a religious exemption from any federal law that did not pass strict scrutiny.

2. Courts’ authority

Although courts cannot and should not rule on theological questions, claims of substantial religious burden often depend on purely secular factual and legal assumptions that courts can and should resolve. In Zubik, the non-profits’ belief that the notice requirements made them complicit in the sin of contraception use rested on the assumption that their written refusal triggered the provision of contraception. For example, one religious college argued “that as the trigger-puller or facilitator the college shares responsibility for the extension of [contraception] coverage to its students, faculty, and staff.” As a matter of law, the non-profits are wrong. Their paperwork did not cause contraception coverage. The Affordable Care Act did. It is federal law, not the completion of any form, that created the insurance companies’ obligation to cover contraception. All the paperwork did was extricate the non-profits from that coverage.

Equally erroneous is the non-profits’ claim that the accommodation forced them to facilitate contraception use because the government essentially commandeered their health care plans. But the government did no such thing. In fact, the government exempted their plans. Instead, it required insurance companies – private insurance carriers like Aetna and Blue Cross/Blue Shield – to issue entirely separate plans.

Accordingly, the courts’ rejection of the complicity claim need not turn on any evaluation of the religious doctrine of complicity but rather rejection of the erroneous legal conclusions underpinning that claim. Whatever deference might be owed to a non-profit’s interpretation of its own religious beliefs, courts should not defer, and eight out of nine courts of appeals ruling on the contraception benefit did not defer, to the non-profit’s interpretation of federal law. Nonetheless, without a Supreme Court decision on the merits, questions of how to analyze substantial religious burden remain unresolved.

The need for clarity

The Supreme Court’s failure to provide concrete guidance will extend beyond this particular case. Given the federal government’s ever expanding protections for the LGBT community, objections to the ACA’s contraception benefit represent the beginning rather than end of religious challenges. Last Friday, for example, the federal government banned recipients of Health and Human Services funds (including Medicare and Medicaid reimbursements) from discriminating on the basis of gender identity. The final rule does not include specific religious exemptions. Instead, it incorporates existing federal protections, providing that the anti-discrimination requirements do not apply if they would violate federal statutes such as RFRA. Of course, to violate RFRA, the new rule would have to impose a substantial religious burden. What counts as a substantial religious burden, and who decides? Perhaps when there is a full bench at the Supreme Court, we will find out.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case. The author of this post, however, is not affiliated with the firm.]