“Doug Laycock retracts in Little Sisters”. That would have surprised me. Turns out: Ed Whelan thinks that Laycock ought to retract, because Whelan disagrees with Laycock. Less noteworthy. (Made me look!)
But I have a simple legal question.
Whelan has been banging on about ‘substantial burden’ literally for years in these RFRA-related/contraception mandate cases. His argument is, ever and again, that of course it’s a ‘substantial burden’ because (taking the present case) if the Supremes decide against them, yet the Little Sisters of the Poor persist in refusing to do what the law requires (in a spirit of religiously-motivated civil disobedience) they face substantial fines. Surely substantial fines = substantial burden. QED. But this is plain nuts, right? The substantial burden test only concerns the burden if you comply, not if you violate. How not? The fines only apply if a court has ruled your exemption claim is invalid or frivolous (your burden de minimis.) No one has a guaranteed right to flout the law, without penalty, for a reason that is, by legal hypothesis, wrong. Right?
When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?
I’m not surprised that Whelan is writing goofy stuff for Bench Memos. I am surprised that a substantial number of judges agree with his take on substantial burden tests. It makes me think I might actually be missing something. How can it make any sense to say that the substantial burden test is supposed to weigh the legal cost of breaking the law, as opposed to the conscience cost of following it?