Substantial Burden Test?

by John Holbo on March 24, 2016

“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?

I wouldn’t even ask except, in a follow-up, Whelan quotes a 10th Circuit dissent, to which five judges signed their names (here’s the dissent itself):

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?

{ 157 comments }

1

Anderson 03.24.16 at 1:35 pm

Well, there’s probably a reason those five judges were writing in dissent.

2

Eric 03.24.16 at 1:47 pm

Suppose that someone chooses to pay a substantial fine rather than comply. In this case, we would infer that the cost of compliance would have been substantial as well (or else they would have chosen to comply). Thus, the two burdens – of complying and of paying a fine – are not unrelated. Of course, in practice we may think that most people would, in reality, comply, or that willingness to pay a fine is not the proper measure of a substantial burden under RFRA.

3

Anderson 03.24.16 at 1:50 pm

Eric: especially where the cost of paying a fine is offset by a desire to gin up a suit vs. the ACA.

4

Layman 03.24.16 at 1:55 pm

From what I understand of the case, I’m surprised the Litte Sisters of the Poor even have standing. Their health care plan falls under ERISA and, as a church-run ERISA plan, is exempt from the ACA. If they win, their employees don’t get contraception coverage, and if they lose, their employees don’t get contraception coverage. I’m aware that there are other plaintiffs, but it’s a bit odd that they’re part of the suit, and even odder that they’re the most forward parties to the suit.

5

bianca steele 03.24.16 at 2:01 pm

It’s interesting: the Little Sisters claim following the law (filing paperwork to tell the government who they aren’t fully insuring, not actually insuring them, which the government agrees they don’t have to do) poses a substantial burden; the court disagrees and imposes a fine; then the Little Sisters claim it’s the penalty part of the law that poses a substantial burden. Is this logically sound, legally speaking?

6

jake the antisoshul soshulist 03.24.16 at 2:03 pm

It is the business model of the Little Sisters of the Poor to have plenty of the poor to minister unto. Contraception would tend to reduce the number of the poor, therefore undermining their mission. Thus they have standing in any case involving contraception.

7

bianca steele 03.24.16 at 2:04 pm

It also seems to involve a very broad understanding of what kinds of actions make a person complicit in sin, which would seem to be quite hard to maintain in the general case. Of course cloistered religious orders aren’t the general case, but still.

8

Layman 03.24.16 at 2:08 pm

This is a fair point. Religious organizations (and closely-held private companies) should sue to avoid the minimum wage standard. After all, paying employees facilitates the sins of employees, and the Little Sisters should be able to limit how much they facilitate that sin, without government interference.

9

RK 03.24.16 at 2:09 pm

The “substantial burden” prong asks what the burden for not complying would be absent the religious accommodation. It’s part of the test courts use for determining whether there should be an accommodation, so it it can’t take into account whether a “court has ruled your exemption claim is invalid or frivolous” — that would be circular.

10

BenK 03.24.16 at 2:10 pm

It’s a mess and we should all acknowledge this – the degree of heterogeneity in values combined with the degree of intrusive, universal regulation, creates an impossible situation. Freedoms of speech – even thought, practice of religion, assembly, are all crushed beneath the weight of ideological outrage codified into regulatory activity.

11

oldster 03.24.16 at 2:19 pm

Eric at (CT #N, which will change)

“Suppose that someone chooses to pay a substantial fine rather than comply. In this case, we would infer that the cost of compliance would have been substantial as well (or else they would have chosen to comply).”

Well, no. We could infer *either* that the cost of compliance would have been a substantial burden, *or* that the person is willing to pay a substantial fine in order to make it *look* as though the cost of compliance is a substantial burden.

Does the state impose a substantial burden on me when it asks me not to murder people? By your method, I can prove that it does so, by my willingness to murder people and pay whatever substantial penalties the state imposes. And since I am willing to pay it, I thereby show it was a substantial burden to abstain from murder.

In which case, the law against murder really should not be imposed on anyone willing to murder and pay the legal penalties.

12

RK 03.24.16 at 2:27 pm

Does the state impose a substantial burden on me when it asks me not to murder people? By your method, I can prove that it does so, by my willingness to murder people and pay whatever substantial penalties the state imposes.

Well, a number of murderers don’t intend to pay the penalty, because they think there’s a good chance they won’t be caught and convicted. If someone commits murder knowing that they’re going to be caught and punished (say it’s in front of a police officer, absent any “heat of passion”), then yes, I think one could infer that that person had a sufficiently compelling reason to commit the murder that the prohibition on it could be said to impose a substantial burden.

That, of course, doesn’t mean that they should be exempt from the murder laws, and indeed, that’s why RFRA doesn’t grant a religious exemption to everyone whose religious practice is substantially burdened by the law. That’s just one of the things you have to show to get a religious exemption.

13

RK 03.24.16 at 2:36 pm

Layman:

From what I understand of the case, I’m surprised the Litte Sisters of the Poor even have standing. Their health care plan falls under ERISA and, as a church-run ERISA plan, is exempt from the ACA. If they win, their employees don’t get contraception coverage, and if they lose, their employees don’t get contraception coverage. I’m aware that there are other plaintiffs, but it’s a bit odd that they’re part of the suit, and even odder that they’re the most forward parties to the suit.

The relevant question for standing isn’t whether the employees will get contraceptive coverage, but whether the Little Sisters would have to pay fines if they don’t sign Form 700. The government’s position is that they’d have to, because that would allow them to try and convince the company that processes pharmaceutical claims under the Little Sisters’ plan — which doesn’t share their religious objections — to provide contraceptive coverage to the Little Sisters’ employees. That’s what gives the Little Sisters standing, though you’re right that there’s a chance their employees wouldn’t see contraceptive coverage even if they lost.

14

bianca steele 03.24.16 at 2:41 pm

The language at this link http://www.scotusblog.com/case-files/cases/little-sisters-of-the-poor-home-for-the-aged-v-burwell/ shows why the Little Sisters might have a case: filling out the form is framed as fulfilling an alternate method of complying with the coverage mandate, and the purpose of the law is to provide contraceptive coverage therefore complying is participating in providing coverage. So maybe this doesn’t bring in broader issues of complicity in state actions, or in participating in the state’s desire to ensure fair treatment to everybody regardless of whether their beliefs are the same as their employers. It goes, back, though, to whether all the parts of the law have the same purpose, even the “alternatives,” and arguably the “penalties”. Interesting.

15

John Holbo 03.24.16 at 2:42 pm

“It’s part of the test courts use for determining whether there should be an accommodation, so it it can’t take into account whether a “court has ruled your exemption claim is invalid or frivolous” — that would be circular.”

I don’t understand. The Catch-22 is on the other side and there is no circularity to my way of thinking. (Am I missing something?)

Suppose we build a hypothetical case in which complying would be, by hypothesis, at most a de minimis burden to religious exercise. Suppose the case is: a religious leader objects to making his church building comply with fire safety regulations and appeals for an exemption under some state RFRA. He thinks the fire extinguishers clash with the religious art on the walls, lowing the spiritual tone of the place. A court, upon due deliberation, determines the state has a legit interest in fire safety, and the burden is de minimis. So now if the church fails to install fire extinguishers, after this decision comes down, the church will be shut down by the fire marshal. Getting your church shut down IS a substantial burden on your religious exercise, no doubt. But surely it doesn’t follow that any church can flout just about any (?) law that would get it slapped with a severe penalty, because severe penalties would be a substantial spiritual burden for any church. That’s just completely backwards.

16

John Holbo 03.24.16 at 2:45 pm

“filling out the form is framed as fulfilling an alternate method of complying with the coverage mandate, and the purpose of the law is to provide contraceptive coverage therefore complying is participating in providing coverage.”

I understand that this is the Sister’s argument. But it isn’t Whelan’s. And it isn’t the argument of that 10th Circuit dissent.

17

bianca steele 03.24.16 at 2:51 pm

@16

No, but it has the same form: the law as a whole is to provide contraceptive coverage, so compliance with the accommodation section of the law is compliance with the whole law, so filling out the form mandated to get the accommodation is equivalent to providing contraceptive coverage. The fine is similarly part of the law, therefore paying the fine must also be a violation of religious freedom (otherwise the term “substantial burden” is out of line here). At least–IANAL should be clear from the above–that’s what the summary of the brief implies.

The press has focused more on the idea that participating in administration of the exceptions is excessive participation in sin, which probably plays into why this language was chosen, but if the language is assumed to be appropriate, I’d think getting into it is unnecessary.

18

John Holbo 03.24.16 at 3:01 pm

“No, but it has the same form”

You (they) are offering an argument that compliance with the law would entail a spiritual burden. Whelan is making the argument that non-compliance with the law would entail a financial burden. That’s not the same argument.

“paying the fine must also be a violation of religious freedom”

All the state has to do is provide a path by which the conscience/religious exercise of believers can remain substantially unburdened. If following the law would be that path, then it is no objection that breaking the law would not be that path. The state is not in the business of guaranteeing that your freely-chosen criminal lifestyle shall not result in burdens to your exercise of religion. It only needs to guarantee that your non-criminal lifestyle is not so burdened (hence that you are not driven to a life of crime to keep your religious conscience clear.)

19

RK 03.24.16 at 3:04 pm

Am I missing something?

I’m not sure, but as I understand the Tenth Circuit’s dissent, they’re saying that the substantial burden is the law’s demand “that a person do something the person considers sinful.” On pages 3-4 of your link, it quotes a prior case that concluded that “a religious exercise is substantially burdened under [RFRA] when a government . . . requires participation in an activity prohibited by a sincerely held religious belief .” The large financial penalty is relevant only in it’s what makes it a demand, not that paying the fine is itself the substantial burden. To use one of Whelan’s examples, if the government ordered all public-school students to eat pork once a week but imposed no penalty for disobeying, then there would be no substantial burden since the government isn’t forcing anyone to eat pork in any meaningful sense.

20

bianca steele 03.24.16 at 3:10 pm

If they can’t (or won’t) provide a plausible argument as to why filling out a form is an equal burden to providing coverage, they’re essentially arguing that “complying with the statute” is inherently a substantial burden, regardless of which part of the statute. (Does the burden, legally, have to be a spiritual one? I don’t think so, otherwise it would be okay to “tax” some religions at high rates, which would essentially be a fine.) I take it that’s why the summary is worded as it is. The nitty-gritty, particularistically detailed argument about why the form is a (spiritual) burden were left out, by their choice. If it were there, I agree, in that case we’d have to talk about why filling out a form isn’t a spiritual burden (except under unacceptably broad theories that we can’t expect everyone to agree to), and also the question about whether the fine itself is a burden probably wouldn’t arise.

However, the summary seems still to be surprisingly broad in suggesting religious people figure out what “act” by others is burdening them, and what other sub-parts that one “act” might have, that they also have to reject in practice.

21

Trader Joe 03.24.16 at 3:14 pm

“The state is not in the business of guaranteeing that your freely-chosen criminal lifestyle shall not result in burdens to your exercise of religion. It only needs to guarantee that your non-criminal lifestyle is not so burdened (hence that you are not driven to a life of crime to keep your religious conscience clear.)”

Turn the argument about 90 degrees – suppose the law required as a matter of public health that everyone should be required to eat meat. If you want to remain vegetarian or vegan, that’s fine, but you have to file a form every year and get a dispensation from the government to pursue this “illegal” activity.

Add to it that religious freedoms are constitutionally protected, while there is no inherent right to pursue vegetarian/veganism and perhaps it becomes clear that the sisters see it as a burden to have to “PROVE” that they have the right to do something that they already have the right to do year, after year, after year.

22

bianca steele 03.24.16 at 3:21 pm

The law does not, actually, have to provide that all religious practice is unburdened. As I think someone state above, there are a number of tests. Compulsory education, at the risk of having your kids being taken away, can be accommodated for religious reasons, but only within limits. Losing your kids is a “substantial burden,” but that term should apply, ISTM, only to whether teaching them math is. You can’t necessarily say your religion prohibits basic education and expect the state to say OK. So the question should really be, as NPR says, whether filling out the form is burdensome in a way not outweighed by state interests.

23

Layman 03.24.16 at 3:25 pm

“Add to it that religious freedoms are constitutionally protected”

Well, some are, and some aren’t. There seems to be a clear legal consensus that e.g. polygamy is not a constitutionally protected religious practice. So the state does act to constrain some religious freedoms, for what the state sees as the public good, and that’s where the notion of ‘burden’ comes from. Of course the Sisters say filling out a form every year ‘burdens’ them, but if in fact that’s a ‘burden’ so great that it infringes on religious freedom, then I can’t see how any law survives that test.

24

John Holbo 03.24.16 at 3:25 pm

“that a person do something the person considers sinful.”

Yes. In the Sister’s case, part of the decision needs to be whether the claim that one finds signing this form to be intolerably sinful is quite credible. This is Laycock’s point:

https://www.washingtonpost.com/opinions/how-the-little-sisters-of-the-poor-put-religious-liberty-at-risk/2016/03/20/eaaa6a34-e4b4-11e5-a6f3-21ccdbc5f74e_story.html

The court should be substantially deferential, but not absolutely so. Whelan disagrees with this. His argument is different and, so far as I can tell, completely nutty, and the next bit you quote shows this:

“To use one of Whelan’s examples, if the government ordered all public-school students to eat pork once a week but imposed no penalty for disobeying, then there would be no substantial burden since the government isn’t forcing anyone to eat pork in any meaningful sense.”

This is what is so baffling to me. Gratuitously ordering all public school students to eat pork, and forcing the religious non-pork eaters to cheat would be an obvious, flagrant burdening of their religion, even if no financial or other penalty attached to cheating. The kids are obviously going to be open to being shamed as cheaters, after all. How could Whelan even think this comes close to being ok.

On the other hand, suppose the state mandates that all children eat a banana. And if you don’t eat one, it’s $1000. A Catholic group objects on the grounds that it is against Catholic teaching to eat bananas. The court refuses to grant an exemption on the very sound ground that it obviously isn’t against Catholic teaching to eat bananas. No plausible evidence otherwise can be adduced. This group is confused, or in the pay of the anti-banana lobby, or something. But their claim that this thing violates their religious conscience just doesn’t hold up, on examination. (Obviously I’m not discussing the case of a sincere, anti-banana Catholic splinter sect. I’m talking about Catholics who were happily eating bananas a month ago – we’ve got the pictures to prove it! But now that the state is ramming them down every kid’s throat, they have confabulated a religious objection! Silly, I know.) And now Ed Whelan (and 5 judges on the 10th) step in and argue that, even though forcing kids to eat bananas doesn’t burden any kid’s Catholic conscience, yet … YET … the fact that, if all the Catholic kids refuse to eat bananas on religious grounds (which they haven’t got) this is going to result in a huge financial loss to the Catholic community, and THAT would burden the practice of the Catholic religion. (Less money in the collection plates due to all the banana fines paid?) Ergo, mandating banana-eating would be a substantial spiritual burden to Catholics after all? Just because they might flout the law and then get slapped with serious fines? Serious fines do not convert spurious reasons into serious reasons. Where’s the sense in that?

I realize my banana example is absurd. But that’s the point. If this Whelan argument make a lick of sense one could prove the most absurd things with ease. Hence less obviously absurd things. But it would still be wrong.

25

Sebastian H 03.24.16 at 3:27 pm

““The state is not in the business of guaranteeing that your freely-chosen criminal lifestyle shall not result in burdens to your exercise of religion. It only needs to guarantee that your non-criminal lifestyle is not so burdened (hence that you are not driven to a life of crime to keep your religious conscience clear.)””

Motivated reasoning. You wouldn’t look at it that way when trying to apply the test to Texas abortion regulations. Why don’t they just get in town doctors with hospital privileges? Why don’t they just get buildings with larger hallways?

26

John Holbo 03.24.16 at 3:29 pm

“The law does not, actually, have to provide that all religious practice is unburdened.”

Yes, I was oversimplifying because this doesn’t enter into Whelan’s argument one way or the other, but for the record: there needs to be a balance of state interest over and against degree of burden and over and against rationality of the targeting of the burden. You can’t burden if there is some obvious way you could do the same unit of government work without it. But all this is by the by for present argument purposes.

27

John Holbo 03.24.16 at 3:30 pm

“Motivated reasoning.”

How so? Sorry, I’m missing it, Sebastian. How is the abortion comparison relevant?

28

Trader Joe 03.24.16 at 3:34 pm

@23
Obviously there can be limits to religious freedom, the question is if this is one of them.

Its not the filling out of a form that is a burden. Its having to continually assert that you have the right to do something that you already have the right to do.

Would gay and lesbian couples have been satisfied with being granted the right to marry by filing a waiver from the Defense of Marriage act? Of course not – they have a right to marry and shouldn’t have to re-assert it every year to have it recognized.

29

RK 03.24.16 at 3:34 pm

A Catholic group objects on the grounds that it is against Catholic teaching to eat bananas. The court refuses to grant an exemption on the very sound ground that it obviously isn’t against Catholic teaching to eat bananas. No plausible evidence otherwise can be adduced. This group is confused, or in the pay of the anti-banana lobby, or something. But their claim that this thing violates their religious conscience just doesn’t hold up, on examination. (Obviously I’m not discussing the case of a sincere, anti-banana Catholic splinter sect. I’m talking about Catholics who were happily eating bananas a month ago – we’ve got the pictures to prove it! But now that the state is ramming them down every kid’s throat, they have confabulated a religious objection! Silly, I know.)

Sincerity and substantial burden are two separate requirements for a religious accommodation, and I think this goes to the sincerity issue, not to whether the law substantially burdens the religious practice. The problem is that the government conceded sincerity in each of the cases before the Supreme Court, so it’s off the table.

(A number of the amicus briefs in the Supreme Court cases also argue that the Little Sisters’ belief isn’t actually something idiosyncratic, but rather compelled by orthodox Catholic theology — I’m not familiar enough with Catholic doctrine to tell how much this is ginned up for litigation purposes.)

30

John Holbo 03.24.16 at 3:41 pm

“The problem is that the government conceded sincerity in each of the cases before the Supreme Court, so it’s off the table.”

Yes, but my point is that the substantial burden is being made absurdly easy to satisfy. It can even be satisfied in a case in which sincerity is lacking. How nuts is that?

My point isn’t that the Sisters are not sincere (I am sure they are). Nor is my present point that the Sisters’ claim of a substantial burden is overblown (although I happen to believe that is true). My point is that if the substantial burden test could be satisfied even in a case in which sincere belief, and substantial burden were patently lacking, we have misunderstood the test.

31

bianca steele 03.24.16 at 3:42 pm

@28

I don’t know that the people complaining are making the argument you would make if you were in their position, based on libertarian principles, and not (I assume) because you see yourself as potentially in the same position for the same reasons. Even if they wanted to, they aren’t in fact being asked to sign a paper staying “I belong to a stigmatized religious group”.

They’re being asked to sign an additional paper, added to the numerous papers they already fill out in connection with their choice to employ people and provide them health coverage, telling the government that they prefer not to carry out part of an employer’s responsibility to their employees, so that the government can protect those employees’ rights.

32

Layman 03.24.16 at 3:42 pm

“Its having to continually assert that you have the right to do something that you already have the right to do.”

In practice, it’s filling out a form. The state recognized the religious objection, established an exception, and a provided a mechanism for invoking it. If that mechanism – filling out a form – is a substantial burden, what would not be a substantial burden?

Churches are similarly exempt from taxation. To invoke that exemption, they must file a form, I believe, and do so every year. Is that a substantial burden on the free exercise of their religion?

33

Trader Joe 03.24.16 at 3:56 pm

@32
“Churches are similarly exempt from taxation. To invoke that exemption, they must file a form, I believe, and do so every year. Is that a substantial burden on the free exercise of their religion?”

If the government is interested in passing the equivalent of a 16th Amendment as to the provision of birth control (or anything else) then I would agree…as it stands the first amendment is still the abiding guidance.

I’ll ask again: Would gay and lesbian couples have been satisfied with being granted the right to marry by filing a waiver from the Defense of Marriage act? Of course not – they have a right to marry and shouldn’t have to re-assert it every year to have it recognized.

34

John Holbo 03.24.16 at 4:02 pm

Maybe it will be clearer if I put it this way: the burden of having to pay some fine is obviously redundant on (hence extraneous) to all the relevant questions.

You are being forced to do something by the state. This is either

A) A substantial religious burden on you
or
B Not.

In the case of A we don’t need a fine. The state has already substantially burdened you by making you do the thing. A fine is extra. Probably it’s worse – more burdensome – if there were a fine. But it’s bad enough even without a fine, if the burden is undue for other reasons. If it’s a substantial burden on the Sisters to have to sign a piece of paper, then it is so even without a whopping fine if they fail to do so.

In case of B, again, we don’t need a fine. If doing something isn’t a spiritual burden, then fining you for not doing it doesn’t make it a spiritual burden to pay the fine.

35

CJColucci 03.24.16 at 4:04 pm

Layman, a lot of lawyers would have trouble putting it as clearly as you just did. At least if it was not in their clients’ interests to be clear.

36

Layman 03.24.16 at 4:04 pm

“Would gay and lesbian couples have been satisfied with being granted the right to marry by filing a waiver from the Defense of Marriage act?”

The issue here is the absence of a compelling public good for DOMA, against which burdens can be weighed. Any burden is an undue burden when weighed against a law which infringes personal freedom for no defensible public purpose.

37

John Holbo 03.24.16 at 4:08 pm

“Would gay and lesbian couples have been satisfied with being granted the right to marry by filing a waiver from the Defense of Marriage act?”

What would be the compelling state interest in having them file the waiver? The state has asserted an interest in providing contraceptive coverage. Getting the forms from the likes of the Sisters serves this interest in a clear enough way. It tells us where the holes in the desired coverage are. What analogous legitimate interest might be asserted as served by collecting a file-drawer of waivers from the DOMA? (What thing that the state has an interest in doing could not so easily be done any other way than by collecting stacks of these waivers?)

38

John Holbo 03.24.16 at 4:10 pm

What layman said.

39

Trader Joe 03.24.16 at 4:11 pm

“The issue here is the absence of a compelling public good for DOMA, against which burdens can be weighed. Any burden is an undue burden when weighed against a law which infringes personal freedom for no defensible public purpose.”

I guess that’s the rub then. At the time DOMA was passed the legislators that passed it and the population at large didn’t see it that way even though a vocal – And correct – minority saw it differently. If you’re a Little Sister, you woulds say that the clause that is burried deep inside the ACA that compels an activity against your religious view is just as devoid of public purpose.

I’m not disagreeing with your conclusion mind-you, I’m disagreeing with the perspective. People who think a law that is patently unfair and against core rights and freedoms aren’t interested in a waiver, what they want is the right and freedom.

40

Layman 03.24.16 at 4:13 pm

@ Trader Joe, here is the entire text of the 16th amendment:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

Note that it doesn’t mention religions or religious exemptions at all. It does not mandate an exemption process. There is no constitutional requirement that religions file forms in able to maintain their exemption. That requirement is a consequence of legislation. Does the requirement to file a form create a substantial burden, and is it therefore an infringement of their religious freedom?

41

bianca steele 03.24.16 at 4:17 pm

Okay, this is OT, but suppose a man believed he had a positive religious duty to throw water or ketchup on women who violated his religions rules about female dress. He has a sincere belief in this. He believes he sins every time he sees woman’s elbows and fails to throw something at her. What level of action or inaction by the government does he accept? Does he go to jail or pay fines, as civil disobedience? Does he accept “free elbow” zones for women who them–or does this just make him complicit? And on the other hand, what interests does the government have in permitting women to walk on the same sidewalks as men, not just the elbow zones? Is the state interest in permitting the free exercise of religion so strong that it cannot override the sincere judgments of the men that the female elbows shouldn’t be visible? Surely it is not.

42

John Holbo 03.24.16 at 4:22 pm

“If you’re a Little Sister, you woulds say that the clause that is burried deep inside the ACA that compels an activity against your religious view is just as devoid of public purpose.”

That’s a terrible line for them to take, so I’m sure they wouldn’t. It’s one thing for them to say they have these sincere conscience objections. It’s another thing to say that the reason they are refusing to sign the piece of paper is that they are so sure it’s lousy public policy that they have the right to scuttle it, unilaterally. They have to be making a narrow religious argument, not two-leg religious-public policy case. If their case depends on them being legitimately vested with absolute public policy authority, they clearly lose.

43

Layman 03.24.16 at 4:29 pm

“People who think a law that is patently unfair and against core rights and freedoms aren’t interested in a waiver, what they want is the right and freedom.”

If your argument is ‘they think what they think, and even though I don’t agree with them, they still think what they think’, I’m not sure what the point of that is.

44

Trader Joe 03.24.16 at 4:35 pm

“What analogous legitimate interest might be asserted as served by collecting a file-drawer of waivers from the DOMA? (What thing that the state has an interest in doing could not so easily be done any other way than by collecting stacks of these waivers?)”

See JH…now you sound exactly like a Little Sister.

What legitimate interest might be asserted by collecting a file drawer of waivers from the religious exemption provision of the ACA?

45

SamChevre 03.24.16 at 4:38 pm

John Holbo @ 34

I think the analysis of fines comes in before your first step, at the pre-step:

“You are being forced to do something by the government”

The question is, are you being forced to do this (substantial fines would imply this) or merely encouraged to do this? A trivial charge, or an easily-avoidable one, might indicate that it’s not a “real requirement”.

46

Layman 03.24.16 at 4:42 pm

“What legitimate interest might be asserted by collecting a file drawer of waivers from the religious exemption provision of the ACA?”

The provision of more comprehensive health care insurance to more people. Now your turn.

47

Sebastian H 03.24.16 at 4:46 pm

“The issue here is the absence of a compelling public good for DOMA, against which burdens can be weighed.”

“The state has asserted an interest in providing contraceptive coverage.”

Yes but again the abortion cases are instructive when applied here. Compelling public goods aren’t enough, the government needs to you the least restrictive means to fulfill them. Here there are numerous super easy less restrictive means to fulfill a “women must have access to birth control” compelling state interest. You could make it so that women could get it over the counter and give them $15 per month for example.

Further, half the game is in defining the government interest. Does the government have a compelling state interest in providing contraceptive COVERAGE or in providing contraceptive treatments?

The reason I bring up the abortion cases is that you wouldn’t want that reasoning applied there. The providers COULD keep open illegally (which is to say without large enough hallways for crash carts and with doctors who don’t have local hospital privileges.) They COULD be concientious objectors and risk running afoul with the law. But that is a pretty substantial burden.

48

Trader Joe 03.24.16 at 5:36 pm

“The provision of more comprehensive health care insurance to more people. Now your turn.”

That end point remains the case whether the form is completed or not. The only way non-compliance aids the goverment initiative is if the purpose is to fine non-compliance, in which case – it is in fact a burden, as asserted by the jurists in the case.

49

Patrick 03.24.16 at 5:42 pm

You’ve got this mostly right. The substantial burden prong applies to what the law requires you to do. Essentially, you lay out all the ways to comply with the law, and if at least one isn’t a substantial burden, the law passes. “Pay the fine” is one way to “comply” with the law, at least from a way of thinking, but it isn’t the only one. Filing the form is also an option and that has to be evaluated as well. You can’t bootstrap it with the fine.

To decide otherwise is to moot the entire concept of a religious accommodation.

50

Yankee 03.24.16 at 6:24 pm

It also seems to involve a very broad understanding of what kinds of actions make a person complicit in sin …

Speaking as an Evangelical, this is a very valid argument. Denies free-will, grace, or election depending on which way you swing. Fails the “render to Caesar” test. Risks being a stumbling block for many. Besides not being what I for one mean by “social activism” (comfort the afflicted, etc.).

Since the plaintiffs are claiming a religious exemption, perhaps this argument could be presented in court? Attack their sincerity in terms of their professed beliefs. Question of standing again.

51

Francis 03.24.16 at 6:36 pm

To take this in a somewhat different direction — If the Sisters win, can I found the Church of Religious Humanism, assert that the provision of abortion services to women in need is the highest sacrament of my faith and prevail in a challenge to Texas’s TRAP laws?

Because that would be totally awesome.

52

Layman 03.24.16 at 9:29 pm

I can’t really grasp why several posters want to conflate this case with the Texas abortion clinic restrictions case. If the Texas law contained a provision which allowed any clinic to be exempt from the law by simply filing a 2-page form every year, there would be no case. No clinic or patient would claim that was an undue burden.

53

Dean C. Rowan 03.24.16 at 9:52 pm

Worth reading the majority opinion in the 10th Circuit case: “We conclude the accommodation does not substantially burden Plaintiffs’ religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not ‘trigger’ or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious exercise for the purposes of RFRA.”

54

Layman 03.24.16 at 9:59 pm

“I tend to think the state’s claim to regulate conditions where medical procedures are done is a little bit stronger…”

…even when the state admits there is no need for the regulation, and points to no benefit from the regulated requirements, and offers no explanation for why one kind of clinic was singled out for special regulation while others were not. Do try to keep up, Brett.

55

Layman 03.24.16 at 10:20 pm

“That end point remains the case whether the form is completed or not.”

Not so fast, Trader Joe. What was the compelling public good case for DOMA?

56

heckblazer 03.24.16 at 10:29 pm

Layman @ 32:

Unlike other non-profits, churches do not have to file an annual information form with the IRS.

57

Layman 03.24.16 at 10:54 pm

@ heckblazer

Thanks, that’s news to me.

If I’ve read correctly, perhaps a more relevant example: Churches that pay employees may object to paying payroll taxes (Social Security & Medicare taxes) on religious grounds (who knew?). Such churches may be exempt from paying those taxes through the expedient of, you guessed it, filing a form. Is this an undue burden which violates their religious freedom, or an accommodation which preserves it?

58

Patrick 03.24.16 at 11:38 pm

heckblazer- Are you arguing that this case should come out differently if the form only had to be filed once, like the forms for IRS recognition as a church? Are you arguing that the undue burden is all the paperwork of filing the form repeatedly as time goes on? If not, then who cares.

For what its worth, the reason the IRS only requires you to file for recognition as a church one time is because churches generally remain churches… whereas employees come and go. Not that this matters, because this issue is a complete red herring and everyone knows it, but that’s the reasoning behind it.

59

BruceJ 03.24.16 at 11:42 pm

By this logic, if I declare myself to be an Aztec priest, then during the festival of Tlacaxipehualiztli in honor of Xipe Totec, the laws against me murdering people and wearing their flayed skin for 20 days is an impermissible ‘substantial burden’ on my religious rights.

60

John Holbo 03.25.16 at 12:33 am

48: ” The only way non-compliance aids the goverment initiative is if the purpose is to fine non-compliance”

No one is arguing that non-compliance has to aid the government initiative. Rather, compliance has to aid it. Big difference. We aren’t seeking a government interest in people NOT doing what the government has an interest in. There is no reason to assume such a thing exists (although, I suppose, any government can find a use for a bunch of money lying around. But if it is only doing all this to extract money from pious folks who engage in civil disobedience, it’s no-go.)

Sebastian: “Here there are numerous super easy less restrictive means to fulfill a “women must have access to birth control” compelling state interest. You could make it so that women could get it over the counter and give them $15 per month for example. “

I don’t think that sounds easy or, if it comes to it, less restrictive. Someone’s going to argue that it’s unfair that we are literally just giving every woman 15 bucks a month which they can spend on anything. OK, so now the 15 bucks can ONLY be used for birth control. Now someone is going to argue (because this would be a good argument) that the government nudging you every month to buy birth control is a nudge towards you taking it. ‘Sleeping around money?’ It’s going to be a PR disaster, and for a good reason: what compelling interest does the government have in pushing you to take birth control rather than, say, not doing so? (As things stand, the state is only claiming a legitimate interest in you having access. Now you have the government going a good deal further than that. Well, why does it have an interest in going further than that?) Also, not all birth control issues can be handled over the counter.

If you are really serious about this, you have to game it out more plausibly, Sebastian. I realize I used a thoroughly silly banana example upthread, to illustrate my point. But my point was, precisely, that you could defend silly things this way. Your point is that non-silly means could work as well or better. Proposing silly-sounding non-silly means defeats your purpose.

61

Hogan 03.25.16 at 12:47 am

Its having to continually assert that you have the right to do something that you already have the right to do.

I have to sign in every time I vote, which is twice a year. Is that a substantial burden?

62

Dean C. Rowan 03.25.16 at 12:54 am

You asked, “The substantial burden test only concerns the burden if you comply, not if you violate. How not?” A legal encyclopedia digesting a 2013 case out of E.D.N.Y.: “Where government action coerces a religious adherent to undertake affirmative acts contrary to his religious beliefs, the substantial burden inquiry under RFRA should focus primarily on the intensity of the coercion applied by the government to act.” The same encyclopedia cites a 2008 California case (which cites to the SCOTUS holdings) to support the following: “Thus, under the United States Supreme Court’s most recent holdings, a religious objector has no federal constitutional right to an exemption from a neutral and valid law of general applicability on the ground that compliance with that law is contrary to the objector’s religious beliefs. The law need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”

Taken together, these principles suggest that 1) the penalty for violation could be taken into account as a measure of the “intensity of the coercion” to act, but also that 2) a merely “incidental effect” of compliance with an act contrary to one’s religious beliefs won’t trigger strict scrutiny. On this last point, the 10th Circuit dissenters appear to be wrong, at least from the point of view of California’s Supreme Court. Essentially, the analysis is what Patrick @49 is saying.

63

SamChevre 03.25.16 at 1:01 am

Dean Rowan @ 64

Key distinction here, versus the California case: this is an RFRA case, not a Constitutional case. A constitutional right would bind California law; the (federal) RFRA only applies to Federal laws.

64

Dean C. Rowan 03.25.16 at 1:08 am

I should mention that in Hobby Lobby the majority relied entirely on the penalty. Addressing substantial burden the Court wrote, “If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe.” Only the dissent noted the incidental effect of compliance with ACA.

65

Dean C. Rowan 03.25.16 at 1:09 am

You are correct, of course, SamChevre @65.

66

John Holbo 03.25.16 at 1:17 am

“Where government action coerces a religious adherent to undertake affirmative acts contrary to his religious beliefs, the substantial burden inquiry under RFRA should focus primarily on the intensity of the coercion”

Thanks for that, but I’m afraid I find that statement equivocal precisely where it needs to be clear. Does ‘intensity of the coercion’ refer to

1) Degree to which compliance would burden your conscience

or

2) Severity of the whack if you fail to comply

or 1 & 2?

Asking a lot of someone, and punishing them heavily if they don’t do it, are both ‘severe coercion’, but in different senses.

My point is that 2 would be absurd. It really should be pure 1.

You quote the next bit, too, which supports what I say: incidental burdening is not enough. But the problem is that Whelan and co. will now confusingly circle back to the first point and say it’s not an incidental burden at all if there’s a whack if you don’t do it. Ergo, punishing someone for failing to shoulder what should have been a merely incidental burden makes it a substantial burden, and we can’t have that. Ergo, you can’t force people to shoulder even incidental burdens. Whelan basically has a proof that all incidental burdens become substantial when compelled (via sanction.) Quantum jurisprudence, Copenhagen interpretation style. What is needed is a clear statement that coherence requires the test apply ONLY to the costs of compliance, not to the costs of non-compliance. “intensity of coercion” can only refer to intensity of violation of one’s conscience, not depth to which the state reaches into your pocketbook if you fail to comply.

67

John Holbo 03.25.16 at 1:36 am

Yes, we do need to keep RFRA clear from strict Constitutional issues.

“I should mention that in Hobby Lobby the majority relied entirely on the penalty. Addressing substantial burden the Court wrote, “If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe.” Only the dissent noted the incidental effect of compliance with ACA.”

Yeah, I was going to go back and look at that. Whelan said the same: the Supremes agreed with his interpretation of the substantial burden case in Hobby Lobby. That’s even more important than some dissent from the 10th, after all. And it looks as though the Supreme majority did side with Whelan’s reasoning. But that seems totally absurd. If this sort of argument worked, you could prove that anything was a substantial burden on the practice of religion just so long as it was likely to lower ‘exercise of religion’. You wouldn’t even need a colorable case of the government forcing someone to violate their conscience.

Let’s try another case. Suppose you rob someone at gunpoint and go to prison. You belong to a religious sect that regards actual attendance of holy rites at a particular site as of paramount spiritual importance. In prison, you can’t get to your sacred site. Now maybe – maybe! – there is some interesting argument to be had about whether we need to expand ‘cruel and unusual’ to allow extra rights to prisoners who can demonstrate sincere religious need for it. But surely nobody is going to argue that the government passing laws against robbing people at gunpoint is itself a burden on religious exercise, just if the punishment for armed robbery may be religiously inconvenient for some criminals. Please note: we aren’t imagining a case in which a defendant alleges that not being an armed robber would violate their conscience. (Crazy as that would be. We aren’t talking about devotees of some thuggee sect, who think Kali demands they rob people at gunpoint or whatever Sax Rohmer silliness one might devise.) We are imagining something even sillier: a legal finding that forbidding a defendant from doing something that even the defendant doesn’t allege is religiously obligatory would be tantamount to forcing the defendant to violate religious obligations. That just can’t make sense. Ergo, this can’t be the right way to look at it.

68

Dean C. Rowan 03.25.16 at 1:49 am

It’s both 1 and 2. Setting aside the lingering “incidental effect” issue, which I believe pertains as well to RFRA as to Free Exercise cases–the distinction SamChevre makes points out RFRA’s inclusion of laws of general applicability as potential burdens; they are not so under First Amendment jurisprudence–imagine the penalty were a one-time $1.00 exemption fee. The economic consequences would not then be “severe.” You tried this tack with the fire extinguisher example, but there the government would argue successfully a compelling interest, as you point out, and least-restrictive means, which is not the same as an “incidental effect” or “de minimis burden.” Least-restrictive means asks if there are other reasonable ways to achieve the interest at a reduced burden, not whether the burden is incidental.

So, a couple caveats in conclusion. First, a comment up-thread suggests that RFRA does dispense with the “incidental effect” doctrine imported from Free Exercise jurisprudence. I read otherwise, and if I’m correct, then an incidental effect–having to sign a form, having to “participate,” however remotely, in a process the end result of which you disapprove–drops the suit. Second, as SamChevre notes this is a RFRA case, and RFRA is inapplicable to cities and counties, who impose fire protection laws. Your plaintiff wouldn’t be able to sue the city under RFRA.

69

Dean C. Rowan 03.25.16 at 1:57 am

RFRA: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.”

70

Dean C. Rowan 03.25.16 at 2:05 am

Serious copy-and-paste here from a helpful article digesting cases that address these issues:

In Muhammad v City of New York Dep’t of Corrections (1995, SD NY) 904 F Supp 161, the court entered judgment in favor of defendants in an action under the Religious Freedom Restoration Act (RFRA) (42 U.S.C.A. §§ 2000bb et seq.), brought by the plaintiff, a member of the Nation of Islam, who alleged that his free exercise of religion was violated, the court finding that in enacting RFRA, Congress did not intend that courts would no longer extend the deference traditionally accorded prison administrators. In order to establish that plaintiff’s exercise of religion was substantially burdened, the plaintiff must demonstrate that the government’s action pressured the plaintiff to commit an act forbidden by plaintiffi’s religion or prevented plaintiff from engaging in conduct or having a religious experience mandated by plaintiff’s faith. The Court rejected plaintiff’s contention that he had been substantially burdened since the defendant offered numerous religious services and accommodations for Muslim inmates, including generic congregate Muslim prayer services every Friday and religious study groups and permitted inmates to have unlimited personal clergy/counsel visits with any spiritual leader, including Nation of Islam ministers. The plaintiff failed to demonstrate that the generic Muslim service offered by the defendant offended particular practices or beliefs that were mandated by Nation of Islam teachings, despite evidence that the plaintiff’s beliefs differed in many ways from the beliefs associated with orthodox Islam. In fact, the evidence revealed that the plaintiff received Nation of Islam literature during his incarceration, all Muslim inmates were allowed to observe Ramadan, and there was no prohibition on the members observing their unique December fast. The court stated that a dispute between an inmate who was a member of Nation of Islam and a prison chaplain concerning the plaintiff’s election as Muslim inmate representative was an isolated incident and not symptomatic of hostility or suspicion by the defendants toward members of the Nation of Islam.

71

John Holbo 03.25.16 at 2:28 am

“RFRA is inapplicable to cities and counties, who impose fire protection laws. Your plaintiff wouldn’t be able to sue the city under RFRA.”

Yeah, I’ve been flubbing some of the jurisdictional issues. My amateur status is showing. But the conceptual issue is still there.

One thing that is causing some confusion, upthread, is that plaintiffs like the Sisters have a couple of fallbacks. They could argue that the state doesn’t have a compelling interest, or that it is not least restrictively pursued in this manner. I haven’t been talking about that, although I have tried to respond adequately to Sebastian’s points about all that. Assuming (assuming!) these other lines of defense fail, we fall back to ‘substantial burden’. Is it a substantial burden, if the Sisters have to sign this piece of paper, or is it not? How ought one to decide? My argument ONLY concerns this narrow question, not the other stuff. My point is only that, to determine whether a burden is substantial, a court cannot coherently count the costs of NOT complying as part of the burden, only the costs of complying.

72

John Holbo 03.25.16 at 2:34 am

Sorry, that last comment of mine was exactly backwards. The metaphor of falling back. Really we are stepping forward. Establishment of ‘substantial burden’ is not the final defense, it’s the first threshold. If there is no substantial burden, the case evaporates and the other issues fail to arise. So we need to first establish substantiality. Failing that, the case evaporates. Once we have substantiality, there are fallbacks, but now they are for the government, not the plaintiff. The government establishes compelling interest and etc. Apologies for my poor brain’s failure to operate.

73

Dean C. Rowan 03.25.16 at 2:58 am

I had just written this:

You write, “The fines only apply if a court has ruled your exemption claim is invalid or frivolous (your burden de minimis.)”

Not quite. The fines apply if 1) your burden is incidental; OR if 2(a) the government’s interest is compelling, in particular with respect to its regulation of your behavior, AND 2(b) the government has taken the least restrictive means to effecting that regulation.

…and you have scooped me with @73 and 74. The argument is all about substantial burden for Whelan and the 10th Cir. dissenters, because practically speaking the standard is a tough one and the burden (in court, I mean) shifts to the defendant to justify the regulation. Put another way, if it’s easy to prove substantial burden–because religious faith is largely but not entirely a subjective measure–then the ease of flouting laws on religious grounds increases. Nevertheless, the government might have anticipated your ambitions. Even if the burden, measured in part by the threat of a penalty, is substantial, the government might have a compelling reason for the regulation, and there might be no more efficient (less costly) way to effect it.

74

Dean C. Rowan 03.25.16 at 3:02 am

Plaintiff then argues, “Why a $2000 fine? You could have imposed only $500!” I suspect that at that point deference to Congress and to the agencies who execute the laws kicks in, as it does in some of the cases pertaining to RFRA and prisons. The courts defer to the prison administrators and their expertise.

75

John Holbo 03.25.16 at 3:22 am

“Even if the burden, measured in part by the threat of a penalty”

This is part of the question. Can you measure a burden by checking the severity of the penalty.

Suppose we have jurisdiction A in which there is a $5 fine for failing to do X, which some believers feel obliged not to do.

Suppose we also have jurisdiction B, in which there is a $500 fine for failing to do X, which some believers feel obliged not to do.

Is it reasonable to infer that the believers in B care 100 times as much about not doing X, ergo are substantially more burdened, conscience-wise, by the requirement, over and against the believers in A? Seems like a very uncertain inference. It could be that believers in A and B care equally about X, hence are equally burdened.

76

John Holbo 03.25.16 at 3:28 am

To put it another way: the stiffness of the fine should reflect how important it is to the government that X be done, which is neither here nor there spiritually. By hypothesis, the government’s legitimate ends here are orthogonal to demands of faith. If the government’s end is to burden conscience, the government just straight-up loses. That isn’t a legitimate state interest. So taking the government’s degree of interest in X as a proxy for the degree of spiritual burden imposed by X is not sensible.

77

Dean C. Rowan 03.25.16 at 3:39 am

“It could be that believers in A and B care equally about X, hence are equally burdened.”

I’m no Law & Economics kinda guy, but it seems to me that if believers from A and B care equally about X, then believers from A are less burdened by an order of magnitude. Most of them will pay the five bucks, in part because they can afford to do so. Far fewer from B will unload five Franklins.

One solution would be for non-believers from B, ceteris partibus, to move to A. (See Tibout.)

78

Dean C. Rowan 03.25.16 at 3:48 am

“So taking the government’s degree of interest in X as a proxy for the degree of spiritual burden imposed by X is not sensible.” Not quite. We take the government’s degree of interest in X (as reflected in the fines) as a measure of the burden felt by the plaintiff. It isn’t a spiritual burden, but an economic one, imposed to coerce the plaintiff to perform X. X is the spiritual burden. RFRA does not deal in spiritual burdens.

79

Patrick 03.25.16 at 3:54 am

Dean- you’re presuming that doing X is a substantial burden and then asking whether the penalty for doing X is also a substantial burden. That’s skipping a step.

80

Dean C. Rowan 03.25.16 at 4:03 am

Patrick: I thought I was being agnostic as to “substantial” or “incidental.” I’m trying to explain why weighing the penalty for not doing X might be a burden. For example, if doing X in B imposes an “incidental effect” burden-wise on a denizen of B whose beliefs proscribe X, then even if that person might not be able to pay the penalty, s/he will not prevail in court. No need for a finding of “substantial burden.”

81

Dean C. Rowan 03.25.16 at 4:06 am

That last sentence of mine makes no sense. My point is that a court could find that 1) doing X in B is an incidental effect, hence no case; or 2) the government has proved its compelling interest and the absence of a less restrictive way to enforce it. In either case, the non-believer in B is screwed.

82

John Holbo 03.25.16 at 4:09 am

“Most of them will pay the five bucks, in part because they can afford to do so. Far fewer from B will unload five Franklins.”

But that isn’t the relevant test, or so I have been arguing. The relevant test ought to be: how much are they burdened if they comply (and don’t have to pay the fine)? Why shouldn’t it be: the same? The law and econs angle is misleading because we aren’t trying to build an efficient market for spiritual violations, as it were. RFRA is not like a commodities exchange in which state interests and sins are bartered and traded, back and forth. (Although I must say: the very notion is intriguing. But I’m foreseeing a 2008-style spiritual crisis in which bogus conscience claims – lacking substantial spiritual backing – are speculatively traded, packaged and sold off in tranches, to foster legitimate state interests, and eventually the government will have to backstop everyone’s private spiritual RFRA debts, or else the whole thing will go to Hell. Literally.)

“RFRA does not deal in spiritual burdens.”

OK, now we get to it. Surely RFRA deals primarily in spiritually burdens. A substantial burden to the exercise of religion is a spiritual burden. What else? One of the big problems with RFRA is that we don’t want the government dealing in spiritual burdens. But here we are. So the question, as Laycock says is whether the government will be substantially or else absolutely deferential to private conscience claims. I think Laycock is right that substantial deference is as high as we can reasonably go.

83

John Holbo 03.25.16 at 4:18 am

Sorry, I don’t mean to mock you, Dean. I just was suddenly struck by a vision of securitized spiritual debt swaps, and the banking and regulation apparatus that might entail. And I couldn’t resist. I know you weren’t proposing something so absurd (although I do think you are looking in the wrong direction.)

84

Dean C. Rowan 03.25.16 at 4:40 am

“But that isn’t the relevant test, or so I have been arguing. The relevant test ought to be: how much are they burdened if they comply (and don’t have to pay the fine)?” This is not how I read your query, which I take to be: How can the penalty be a legitimate measure of burden? Your rhetorical question, “How not?,” is doing this work. How is it possible that the penalty weighs into the burden? My response–despite my not being a fan of RFRA–is that it reflects the level of coercion imposed to comply.

“RFRA is not like a commodities exchange in which state interests and sins are bartered and traded, back and forth.” Ha ha ha ha ha! Since when? Look again at my plagiarized comment @72.

I regretted writing “RFRA does not deal in spiritual burdens” the second I hit the Send button. What I meant was that RFRA regulates “exercise of religion.” “Exercise” is not per se a spiritual phenomenon, inasmuch as some of my exercise of my religion involves nothing spiritual at all: driving to church, checking out a book of wisdom from a library, donating to a cause, etc. (A regulation of the purely spiritual would be something like an untenable, “All citizens must believe X.”) Any kind of burden can add to the calculation. The whole point of RFRA is to target government action in the form of laws of general applicability, i.e., laws that are not on their face related to religion. The burden might have spiritual effects, but also economic ones. Consider convenience: law Z ends up forcing me to go to midnight services. I can obtain all the spiritual fulfillment I require, but I have to rework my calendar to manage it. Is that substantial?

Haven’t read Laycock, but I think there is a good deal of deference to plaintiffs’ subjective representations of belief. And yet, see comment @72. (No idea how representative this case is.) There must also be empirical demonstrations of one’s own devotion to religious strictures and of a dearth of alternatives for complying with them. The government will challenge whether the system to which a plaintiff claims devotion is even a religion, whether s/he is in fact devoted, whether the system requires specific behaviors, etc.

85

Dean C. Rowan 03.25.16 at 4:41 am

No mockery received! I totally get the point of your criticism.

86

Collin Street 03.25.16 at 4:41 am

I once played with the idea of an economic system where the circulating currency represented obligation rather than entitlement and so flowed “backwards”. Push money, rather than pull: the church issuing tokens for sinning — or something — rather than the state claiming taxes, and you provided goods and services in exchange for people accepting tokens from you.

87

Dean C. Rowan 03.25.16 at 4:46 am

And likewise, no mockery intended of you. Of the courts and the legal system? Perhaps, yes.

88

John Holbo 03.25.16 at 4:54 am

I once played with the idea of an economic system where the circulating currency represented obligation rather than entitlement and so flowed “backwards”.

“Gravity Falls” is ahead of you with the financial innovations, Collin:

89

bianca steele 03.25.16 at 1:55 pm

That law and economics stuff is interesting, I didn’t know that (not that there’s any reason I should have). Also the arguments in other comments that the whole thing doesn’t apply to nuns is convincing, both that they really don’t have a substantial complaint and that that it’s unreasonable to ask them to comply, and so now I can’t figure out why they’re the public face of the case at all.

Also Yankee @ 54, thanks! All that theology is complicated!

90

bianca steele 03.25.16 at 1:57 pm

Unreasonsble: for the nuns themselves, assuming they don’t employee regular people, maybe lay sisters who haven’t taken vows (though my knowledge of this is from The Name of the Rose)?

91

Francis 03.25.16 at 2:13 pm

JH: With respect, I think you’re making this much harder than it needs to be.

Step 1: The statutory law requires the plaintiffs to assert that the government action imposes a substantial burden on their exercise of their religion.,

Step 2: Because courts are poorly equipped to make that determination, they will accept at face value a plaintiff’s claim that the govt action is a substantial burden, even for something as trivial as signing a piece of paper that will allow a woman to obtain birth control for free from a unrelated third party. (Unless, of course, the claim is for something that the judges disapprove of — like consuming peyote or opening abortion clinics without complying with TRAP laws. Then, of course, the sincerity of the plaintiff’s claim of substantial burden will be deeply doubted.)

Or, put more simply — any connection to mainstream religion -> substantial burden test is satisfied by default.
— religion is rare and/or recent –> substantial burden test requires deep inquiry

92

Dean C. Rowan 03.25.16 at 4:35 pm

This morning I’m trying another approach to your “simple question,” namely, a review of principles of statutory construction that bear on the relationship of statutory sanctions imposed upon the violation of a mandatory rule. Suffice to say that statutory sanctions are treated as of a piece with the enacted legislation. This suggests that for purposes of determining the burden of compliance with a law the penalty is as relevant as the compliant behavior.

This led me to an article that surveys outcomes in cases quite similar to Little Sisters (the typing of which brings to mind a very good Ry Cooder recording): “Validity, Application, and Construction of Religion-Based Challenges to Health Insurance Contraceptive Coverage Mandated by Patient Protection and Affordable Care Act Preventive Services Requirement, 42 U.S.C.A § 300gg-13(a)(4), and its Regulations.” There I find two sections addressing substantial burden, one enumerating cases where the burden is shown the other where it isn’t. Among the former, a case in which the court held that “the institutions were required to pay a penalty if insurance coverage did not include contraception and sterilization, and the institutions objected on religious grounds because providing coverage would make them complicit in violating their religious tenets, citing to RFRA…” Among the latter, “The court also found that the tax payment penalty for failing to comply with the mandate is ‘too indeterminate, remote, uncertain, and indirect’ to qualify as a substantial burden.”

The answer to the simple legal question, then, is a resounding NO. Substantial fines can contribute to a substantial burden. But your question seeks more than a legal determination. It asks as a matter of logic how the penalty for violation of a law can paradoxically serve to excuse the violation by contributing to a substantial burden on religious exercise that puts the government on the hook to justify its regulation. Framed in this way, the argument isn’t so paradoxical. Without targeting religious actors, government commands X, a law of general applicability, because it has a compelling interest in X and because the least restrictive way to accomplish X is to impose a penalty for failure to do X. That penalty places a substantial burden upon religious actors for whom X is anathema. Nevertheless, the religious actors lose.

93

Patrick 03.25.16 at 5:06 pm

Hypothetical scenario- My hypothetical religion mandates vegetarianism. The government passes a law requiring me to eat a banana or face brutal and violent summary execution. I decide to challenge this law solely on religious liberty grounds. I argue that this law is a significant burden on my religious conscience, and the only explanation I offer for why is that summary execution is a really big burden.

Half the people in this thread seem to think I would win that argument.

But in reality a (sane) court isn’t even going to ask whether the penalty for non compliance is a substantial burden until they’ve already determined that compliance itself is a substantial burden.

Now some judges have tried to punt on this question by presuming that a substantial burden exists if a litigant claims it does. But this is still not the same as determining whether a burden is substantial based on the penalty for non compliance.

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SusanC 03.25.16 at 6:49 pm

I’m wondering if there is a theoretical problem with “substantial burden” and religion, at least in a country such as the United States which doesn’t have a state religion:

We can empirically measure how long it typically takes someone to fill out a government form, and thus can know how burdened someone is by the pure act of having to do some additional paperwork. (i.e not very much; but compare, for example, the Paperwork Reduction Act of 1980).

If it was also empirically verifiable that filling in the form will cause a person to be punished by a vengeful deity (e.g. we can all observe that all the previous fillers in of the form have been chained to a rock by Zeus and are now having their liver pecked out by eagles) we could agree that filling in the form results in a substantial burden because of the consequent divine retribution.

But religious claims typically aren’t empirically verifiable.

And, if I recall correctly (not being a lawyer…) U.S. courts really, really don’t like to rule on religious doctrine. So no U.S. judge is going to say “you’re not substantially burdened because the correct interpretation of Catholic theology is that God won’t punish you for it”

Hence, problem. We have no obvious way of knowing if someone is really burdened by the religious element, or is just trying it on. (There is an economic method of discovering their true preference, of course: impose the penalty and see if they fill in the form or pay the fine).

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Dean C. Rowan 03.25.16 at 7:12 pm

The courts will not attempt to psychoanalyze the plaintiff to determine sincere religious belief. Instead, they’ll resort on certain verifiable factors–official writings, frequency of services, other behavioral norms or conventions, such as head wear or beads–as proxies for subjective belief. Even then, they won’t require a plaintiff to comply rigorously with all official doctrine. So, yes, religion is a special case in the U.S., not least because government actions are prohibited from “establishing” religion, which can operate both positively (by promoting a religion) and negatively (by burdening exercise of a religion). Hence the rules for gauging mere “incidental effect.” Among the cases I skimmed last night in this thread was one in which the defendant tried to mount a defense based upon the plaintiff’s incorrect interpretation of the religious requirements. The court would have nothing to do with the argument.

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Layman 03.25.16 at 7:13 pm

It’s hard not to conclude that the Sisters and the other plaintiffs are exercising bad faith.

I raised this earlier, but the Sisters have employees, and they pay those employees money. Money is fungible, which means that the employees can use that money to buy contraceptives. If the plaintiffs are to be taken seriously, that they are morally affronted by the requirement to sign a form which could result in an employee using contraceptives, surely they are just as morally affronted by the requirement to sign a paycheck, or hand over bank notes, which could equally have that result.

I suppose you could argue that they can’t guess if their employees will spend their pay that way; but it’s equally true that they can’t guess if those employees will choose to buy contraception coverage.

If they want to refrain from what they see as facilitating sin, perhaps they should not be employers at all? On the other hand, having decided to gamble their immortal souls by providing the means to sin, what possible difference can it make what form those means take?

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Dean C. Rowan 03.25.16 at 7:15 pm

Ze K @97: You’re on the right track, but see my comment above about how “least restrictive means” might be handled by the court in a case involving a sizable monetary penalty. At some point the court defers to the agency authorized to impose the penalty. That deference isn’t absolute, but it’s high. Unless the penalty is absurdly disproportionate–a million dollar fine for a parking ticket–the courts are going to give a good deal of leeway to the regulatory authority.

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Dean C. Rowan 03.25.16 at 7:22 pm

I haven’t read it yet, but a good place to begin to understand the philosophical underpinnings of law and religion in the U.S. is Brian Leiter’s Why Tolerate Religion? http://www.amazon.com/Why-Tolerate-Religion-Brian-Leiter/dp/0691153612

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Dean C. Rowan 03.25.16 at 8:58 pm

Ze K @102: “Substantial burden” isn’t in this case a judge’s coined phrase. It’s in the statute. It was put there by Congresspeople, signed by a President, etc. (Most of them are clever lawyers, true.) The tests for determining what is a substantial burden, how does the government overcome it, etc., are more likely vestiges of judicial work over the decades and perhaps centuries.

The fines, however high or low, are established by Congress or agency wonks. The high profile of this lawsuit is caused as much by the media and off-the-scales nutcase ideologues as by Congress or agency wonks. And if causing a lawsuit is a measure of a law’s failure, well, then, many, many laws have failed miserably.

100

Ebenezer Scrooge 03.25.16 at 10:20 pm

I think that people are getting a bit too bogged down in Constitutional doctrine here (prettified power, IMO), and missing the real target.
1. Childhood education is compulsory.
2. Public education is funded by taxes.
3. Some people have a quite sincere religious belief that they cannot publicly educate their child. They therefore send them to parochial schools, whose funding amounts to a second education tax imposed solely on these parents.
4. Wingnuts hate government schools.
5. You want to know why wingnuts seems to care so much about “religious rights?” Nothing is constant in wingnuttia but race and taxes.
6. Because of #4, #3 constitutes an “undue burden”, per Alito, Roberts, Thomas, JJ.

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John Holbo 03.26.16 at 1:47 am

I’m going to refrain from responding to Ze K’s forays into common sense until such time as he has adjusted to this new mode in less unsteady fashion. (One should always be encouraged to try new things!)

Dean, I can’t access the article you cite at 97 and, I confess, I don’t really get it.

“Among the latter, “The court also found that the tax payment penalty for failing to comply with the mandate is ‘too indeterminate, remote, uncertain, and indirect’ to qualify as a substantial burden.””

Is your point here just that the door is opened to tax penalty being counted as a burden, potentially? (Whereas I was saying they shouldn’t be, in principle?) That’s a good argument, except for that typical lawyer trick of kicking the can down the road. If you don’t want to decide whether a tax penalty can count towards the burden, even in principle, and you are facing a particular case in which the penalty is not onerous, in practice, you refrain from deciding the principle question. So it looks to me like the stuff you cite might leave my question open.

If I am completely misunderstanding, please explain your point.

Let me try another cut at what is odd here. In effect we are considering penalties for a kind of civil disobedience. If someone refuses to do something that is religiously anathema to them, and the government wins a resulting RFRA case, and plaintiffs persist, they, in effect, choose to pay the penalty. (They lost because the court decided the burden wasn’t substantial, although plaintiff swore it is. Or the burden is substantial, yet the state was found to have a compelling interest that it was pursuing in an appropriate manner.) It seems odd to read RFRA as, in effect, a guarantee that civil disobedience after you lose to the government, in such a case, shall not be TOO painful and costly to engage in, so long as the motive for disobedience is religious. There is something intuitively pleasing about that as a result. Maybe. It’s just doesn’t seem right to say that RFRA says that.

Let me explain both halves of that thought. We generally don’t want to see any sincere, non-violent civil disobedience protests severely punished. Non-violent civil disobeyers (to coin a phrase) generally cause some low-grade nuisance for the state. Someone chains herself to a fence or whatever. In effect the Sisters are making a bureaucratic nuisance of themselves, refusing to tick a form. They are ostentatiously chaining themselves to the fence of the ACA because they don’t approve of birth control and they want everyone to know it. We typically don’t mind it if someone gets hauled to jail for a night, because they chained themselves to a fence (metaphorically or literally) to prove a protest point. That’s part of civil disobedience. That’s the system working. You are showing yourself willing to spend a night in the pokey. You care THAT much, and you want other people to know it. You WANT to go to jail for the night. Democracy in action. Accordingly, we would be very sorry if such mild activities resulted in, say, life imprisonment, or hugely steep penalties. Ergo, it would seem a shame if the Little Sisters, however morally misguided their protests (in my view), got totally shut down over this somehow. If the legal hammer destroyed them with crushing fines for disobedience, or whatever.

But, now the second thought: it just seems wrong to say that RFRA explicitly carves out a space in which civil disobedience can be engaged in, as a low-impact democratic contact sport. RFRA isn’t, as it were, a model penal code for handling civil disobedience cases. Religious liberty is not the right to get only a slap on the wrist if you are civilly disobedient on religious grounds, much less a get out of civil disobedience jail free card. If we feel that it’s a damn shame if the Sisters get slapped too hard for this, in case they lose and then stubbornly persist, then that ‘there oughta be a law against laws that punitive!’ sense is only confusedly transmuted into a sense that RFRA already is that law.

Or so it seems to me.

102

heckblazer 03.26.16 at 2:06 am

Patrick @ 60:
My understanding is that on formation churches don’t have to file anything with the IRS unless they want donations to be tax-deductible. I make no general claims based on this.

John Holbo @ 90:
Would a -$12 bill have infinitely more value than any positively denominated bill? Or does that sort of thing only happen with temperature?

My only observation on the OP is that judges who think signing a piece of paper is a substantial burden on a nun’s freedom of religion likely also to think that a forced ultrasound or having to drive 100+ miles to a clinic is not an undue burden on a woman’s right to get an abortion.

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John Holbo 03.26.16 at 2:23 am

That’s a very weird link about temperature. I don’t understand that.

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Dean C. Rowan 03.26.16 at 2:40 am

You can’t access the article because it’s behind a very secure paywall. I never intended for anybody to read it.

Let me wrap up dinner and a visit with in-laws and I’ll reply.

105

John Holbo 03.26.16 at 8:27 am

Ze, my apologies for excess snark. Your comment struck me as not commonsensical. In a larger sense, I may be mistaking you for another commenter with a ‘Z-ish’ names whose output recently struck me as non-commonsensical. I shall adopt an agnostic attitude towards you, going forward, taking each comment on the merits.

106

John Holbo 03.26.16 at 11:56 am

Upon review, I indeed confused Ze K with someone else who had behaved, recently, in such a way as to deserve snark right out of the box. I try not to be the one who starts these things, so I withdraw my snark, with apologies.

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Dean C. Rowan 03.26.16 at 4:31 pm

My point in providing just two of the article’s digests of cases–one where substantial burden is shown, the other where it isn’t–was simple: they illustrate that courts go either way. The illustration counters suggestions that a plaintiff merely has to asssert that some requirement is a burden. Perhaps the tax one, selected almost at random, wasn’t a good example, because it involves taxes, which are not quite the same as penalties, despite the digest’s conflation of the two. We don’t have enough information from these examples to compare them and explain their diverging outcomes, except that the “tax payment penalty” was “indeterminate,” etc., and the insurance coverage mandate was coercing the plaintiffs into violating their religious principles (or so they claimed).

The civil disobedience framing of RFRA works to a point, but I think the analogy skews too far toward setting the stage as a site for enactments of individual heroism. Going to jail for the night isn’t really democracy in action. Going to jail for the night with a bunch of like-minded colleague activists in a concerted effort to change the law can effect democratic action…or not. Likewise challenging the constitutionality, facial or applied, of a statute that penalizes you for sticking to your religious principles. But something tells me the opponents of the legal state of affairs in either case would have preferred to effect change by writing their representatives in Congress, rather than going to jail or taking a suit all the way to the Supreme Court.

RFRA could very well be a bad law, because it affords leverage to religious believers to parade as exceptional citizens no longer subject to laws of general applicability whose effects interfere “substantially” with religious practices. Worse, it turns out those practices can be purely subjective beliefs about an end–the provision of contraception–the means to which include, however remotely, bureaucratic requirements that look and smell pretty much like other such requirements to which the religious believers aren’t opposed: they file paperwork, maintain records, comply with wage and hour laws, etc. The penalty that coerces believers to act against their beliefs, so HHS sought to argue but too late in the day in the Hobby Lobby case, is less than the cost of complying with the insurance mandate. That’s a crushing fine? The ordinary cost of doing business?

There is a law against laws too punitive. It’s the Establishment Clause, which is what RFRA was designed to effect, although there is some discussion, notably Justice Stevens’ concurrence in City of Boerne v. Flores, suggesting that RFRA in fact violates the Establishment Clause. It gives religous believers a mechanism for excusing themselves from laws of general applicability, which sounds like an establishment of religious over secular interests. The task is to find the balance point where laws of general applicability have no more than an incidental effect on religious exercise. Viewed in this way, RFRA doesn’t carve out a space for individuals to conduct civil disobedience so much as attempt to adjust constitutional dynamics, for better or worse. It’s a classic passive-aggressive “government shall not…” law.

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Patrick 03.27.16 at 3:09 am

Brett Bellmore- You’re being disingenuous. Conservatives regularly go into court and claim that various abortion restrictions are not an undue burden on a woman’s right to get an abortion. The existence of the right is established by precedent and not up for debate. The only question is whether, given the existence of that right, the restrictions in question constitute an undue burden. The conservative litigants and their popular opinion rallying media elites know full well what they are saying when they claim that whatever restrictions are at issue aren’t undue burdens, and you full well know that it isn’t what you’ve written here.

Although I do thank you for the implicit admission that conservatives, as a class, lack even a shred of moral integrity, and regularly and systemically commit perjury. That’s welcome. Its good to get those things out on the table once in a while.

109

Plume 03.27.16 at 3:14 am

Brett @113,

“Well, I think we all know that they think that, because they think there’s no right there to be burdened. In much the same manner as gun controllers think that background checks and waiting periods don’t burden the right to keep and bear arms, because they don’t think the right actually exists.”

Actually, there is no equivalence between the two. A woman’s right to control her own reproductive system, her own body, isn’t something anyone can just wish away. It’s about as fundamental and personal as it can get. It exists as a fundamental human right. But there is no right — and none ever existed — to unlimited, unfettered consumer choice when it comes to guns. There is no right to unregulated, unrestricted consumer selection of as many guns as one might want to purchase, as often as they may choose, and without barriers to firepower or the need to put checks and balances on that firepower. All that racist amendment says is the if someone is in a state militia — which no longer exist in America — they can “keep and bear arms.” That’s it. Nothing more. If they had established a right to unfettered, unrestricted, unregulated access to any kind of weapon, without societal checks and balances, they would have included that part.

Instead, what was included was an extremely narrow, severely limited, basic and impossible to inflate “right” under certain circumstances, to “keep and bear arms,” and those circumstances no longer exist. As in, we no longer have state militias whose chief duty was the put down domestic rebellion, including slave rebellions. This was also to postpone the formation of a federal standing army, which we now have, thereby rendering state militias and the 2nd amendment obsolete. But even if we leave out that key part about the militias, the SA still doesn’t amount to anything more than an extremely narrow right to “keep and bear arms.”

It’s not a matter of not recognizing a right to keep and bear arms. It’s a matter of not recognizing the supernaturalization of that right, created out of thin air by gun nuts in recent decades. It’s a matter of not allowing gun nuts to inflate a right beyond any connection to reality, history or society’s best interests.

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Tom V 03.27.16 at 4:30 am

Trader Joe @28

>>Its not the filling out of a form that is a burden. Its having to continually assert that you have the right to do something that you already have the right to do.

The nuns have always had the right not to take contraception. They are not even paying for it because the insurance companies will give it for free – so much cheaper than a pregnancy. All the nuns are asking for is the right to prevent other people from having contraception, their employees.

And then there is the point that birth control pills may be medically indicated for reasons other than contraception. If the nun is having painful, irregular periods, is she going to refuse the pill that will improve her condition? Even if it prevents pregnancy from the sex which she is not having?

111

Layman 03.27.16 at 2:57 pm

“They are not even paying for it because the insurance companies will give it for free – so much cheaper than a pregnancy. “

Well, no. This is a case involving the ACA requirement that insurance companies provide contraception coverage, so it stands to reason that they did not consistently provide it before, despite the truth that it’s cheaper than pregnancy. So it’s not true that the insurance companies provide contraception for free because of the economics. They do it because they were forced to do so, by the ACA.

“All the nuns are asking for is the right to prevent other people from having contraception, their employees.”

Well, no. The nuns object to being made to provide their employees with contraception. I don’t think that what the law requires amounts to forcing them to do that, and I think it’s objectively true that the law actually exempts them from that requirement. So I think they’re wrong, but it’s not true that they’re asking for ‘the right to prevent other people from having contraception.’

112

Dean C. Rowan 03.27.16 at 5:02 pm

“[T]he very existence of a legal right to abort is itself a massive violation of precedent.” That wins today’s award for most almost meaningless sentence ever written, but I think I understand the sentiment that motivates it. What’s disturbing is that a discussion of the implications of the “substantial burden” standard of RFRA manages to veer off into crude politically charged ipse dixit, but I guess that’s Sir Tim Berners-Lee’s World Wide Web for you.

113

John Holbo 03.27.16 at 11:59 pm

Well, for the record, I think it’s pretty clear RFRA is bad law, for more or less the reasons Dean outlines. Dean writes: “The civil disobedience framing of RFRA works to a point, but I think the analogy skews too far toward setting the stage as a site for enactments of individual heroism.”

I wasn’t advocating the civil disobedience frame as workable. I think the likes of Ed Whelan are imposing it, without realizing this is what they are doing. If the court itself bends that way, in its decision, then … the court decides that way. But that doesn’t make it make sense.

A big problem with the law is a criterion – sincere conviction – that commands almost total deference from the court. (Barring clear evidence of deliberate fraud.) This puts us on a slippery slope. If you are going to let plaintiff’s decide, for themselves, what their sincere convictions are, then probably you should let them decide, for themselves, what substantially burdens those sincere convictions. (If the state was not competent to judge the latter, why would it be more competent to judge the former?) But obviously people cannot just unilaterally decide that they are substantially burdened (by a generally applicable law), and what they say, goes.

It would be nice if we could legally distinguish self-directed burdens vs. other-directed burdens. For example, you may feel burdened, religiously – sincerely! – by the presence of women on the street, showing a bit of leg. But it does not follow that you have a right, under RFRA, to forbid women to do that. Reason: they aren’t you. You can’t use RFRA to compel deference, from others, to your religious observances.

A good analogy example: cases of ultra-orthodox plane passengers forcing women to be reseated:

http://www.nytimes.com/2015/04/10/us/aboard-flights-conflicts-over-seat-assignments-and-religion.html

I think we can agree that shouldn’t be the model: religious liberty as spatial hegemony. You get to leverage your privileges under RFRA into hierarchical authority over some class of your fellow citizens. The question should be: are the Little Sisters acting like those ultra-orthodox passengers, in which case it should be no-go. Or are the Little Sisters really ‘self-directed’ in their faith claims. They aren’t imposing things on their employees. They are just refusing things, for themselves. (Hint: I think it’s the former. They are seeking to impose their religion on others.)

Of course, that frame doesn’t help much, decision-wise. But there’s no hope of getting a coherent decision procedure without getting the self-directed/other-directed distinction in there. When are the things that sincerely burden my conscience the sort of thing that I can insist on, because they aren’t impositions on someone else?

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Patrick 03.28.16 at 12:18 am

Brett- You are continuing to dissemble. The conservatives arguing that the abortion restrictions under discussion aren’t undue burdens are doing so in the specific context of the legal question of what is or is not an undue burden on the right to have an abortion, and you know this.

There is a (apocryphal?) tale that once upon a time, when the English asked people “are you a Catholic priest,” Catholic priests would assure themselves that it wasn’t lying to answer “no” because they could just mentally interpret the question “are you a [specific] Catholic priest [whom the person in question was not].” This is not how real life, or court, works.

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John Holbo 03.28.16 at 12:47 am

“The government doesn’t have a hierarchical relationship with the people it’s ordering around?”

Brett, what is the basis for your belief that the Sisters of the Poor are committed anarchists?

116

Dean C. Rowan 03.28.16 at 3:20 am

Brett @123 is right. The provision for remitting a form is imposed by the government, no question. However, Sisters of Mercy was a goth band. I think you mean Little Sisters. I knew the bass player of Sisters of Mercy, who was also bass player for The Bags and a retail clerk at the cosmetics counter of one of the department stores in my hometown. But the question is whether or not a provision for signing a piece of paper is a substantial burden. Signing a piece of paper. Dwell on that.

The women-on-the-street example, John, misses an important factor, namely, the affirmative actions of government. RFRA involves situations where government, rightly or wrongly, urges or coerces or enables private persons to do stuff. Your example is between two private persons. I don’t have a legal right to complain about too much leg. Meanwhile, government might or might not have such a power. Only when the government wants to urge or coerce or enable a private person to shut down exhibitions of leg might RFRA become an applicable statute. It isn’t a matter of ME adjusting YOUR behavior. It’s a matter of government adjusting YOUR behavior.

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John Holbo 03.28.16 at 4:08 am

“RFRA involves situations where government, rightly or wrongly, urges or coerces or enables private persons to do stuff. Your example is between two private persons.”

Yes, that’s because what we need is, precisely, an example of a relationship between two private persons – or entities. On the one hand, the Little Sisters, let’s say. On the other hand, an employee of the Little Sisters (maybe the spouse or dependant of an employee of the Sisters) who wants contraceptives. The second party is guaranteed something by the ACA whose provision may be significantly burdened by the Little Sisters’ right, under RFRA, not to be significantly burdened. Is that an acceptable outcome or not?

In their discussion of the case, the conservative justices proposed options that would be less burdensome for the Sisters but, patently, somewhat burdensome for those whose insurance comes via employment by them. (Suppose you had to have two different healthcare providers. One for all non-contraceptive stuff. And one for just for contraceptive stuff, because you have two different insurance cards. Would that be ok? It would certainly be highly inconvenient.) The question is: ought RFRA to allow a private citizen (or entity) effectively, if indirectly, to curtail the basic legal rights of a fellow citizen? The employees of the Sisters are, then, in relevant ways, similar to the woman who is compelled to be reseated on the plane, to accommodate the religious observance of an ultra-orthodox fellow passenger. If I’m right with my analogy.

Now, in a sense, it’s always the government doing the coercing, as you say. If the government passes a law saying any women shall be forcibly reseated at the request of any ultra-orthodox fellow passenger, to avoid burdening the latter’s conscience, that’s the government coercing, not the fellow passenger (who is merely requesting). But, in effect, what we are doing is creating a regime in which sincere belief operates, between citizens, as a tool by which a favored class (conscience-asserters) asserts a degree of hegemonic dominance over a disfavored (non-religious) class. Is that what we want to read RFRA as implying?

In short, we tend to talk about accommodation, under RFRA, as something the government has to do. But, in practice, it may be something that citizens are required to do – possibly in dramatic and highly personal ways. A mini-corvee labor program. Is that a desirable outcome? I think not.

Indeed, I would think RFRA itself should self-cancel in such cases. Suppose the female spouse of someone who works for the Sisters (who gets her coverage through her spouse, but doesn’t herself even work for the Sisters) wants contraceptives and has to get a separate ‘Catholics think contraception is bad!’ insurance card, so as to keep the Sisters’ conscience clear. You could argue that being forced to carry around a card that is, by design and in effect, an expression of Catholic theology – a reproach to non-Catholicism – is itself a religious burden. What if she isn’t Catholic? Surely the government shouldn’t force non-Catholics to carry around tokens of expression of Catholic purity of conscience? You aren’t going to force her to finger rosary beads. But that might actually be less hassle for her, and less personal indignity, than having to carry a separate health card.

Good catch with the Sisters of Mercy thing.

“You run for cover in the temple of love.” Sounds like contraception to me.

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Dean C. Rowan 03.28.16 at 4:11 am

As usual, I fucked up. I do of course have a right to complain about too much leg. It’s called the First Amendment (negative, passive aggressive). I don’t have a right not to be compelled to view too much leg. It’s *possible* that the government might afford me the right to complain about too much leg. But it would need to have a REALLY GOOD REASON, and it would need to make sure that it was ONLY targeting leg and that it wasn’t shutting down exposures of LEG that were perfectly harmless.

119

Dean C. Rowan 03.28.16 at 4:27 am

“[W]hat we need is, precisely, an example of a relationship between two private persons…” That’s called Lochner. The employee of the Sisters suffers this conundrum precisely because she is an employee of the Sisters, whose compensation package does not include coverage for contraception. Their compensation package, not the government, forces non-Catholics to carry around expressions of devotion to Catholicism. The government merely acquiesces, because the First Amendment says it must do so.

120

John Holbo 03.28.16 at 4:30 am

“It’s *possible* that the government might afford me the right to complain about too much leg. But it would need to have a REALLY GOOD REASON, and it would need to make sure that it was ONLY targeting leg and that it wasn’t shutting down exposures of LEG that were perfectly harmless.”

This is kind of funny because, of course, if you substitute boobs and genitals and butts for ‘leg’, we are in the actual world. Ah, mysteries.

121

John Holbo 03.28.16 at 4:43 am

The problem with the Lochner analogy is that, since it is the government doing the coercing, not the Sisters (see above), in effect it is the government coercing you into carrying around a ‘Catholics hate contraception’ contraception card, not the employer. Because if it had to be the employer, the employer would refuse, since the point is that the employer refuses to back issuance of any card that gets you contraception (even if it says ‘Catholics hate contraception’ right on the card). Ergo, the Sisters are not like an employer, privately contracting with an employee (a la Lochner). They are an employer who is refusing to contract with an employee. That being the way of it, the government steps in to act in place of the employer, making the contract: providing medical coverage for labor. It accommodatingly issues a card that is (who are we kidding?) a ‘Catholics hate contraception’ medi-card. And the government says: you want to enjoy your rights, under the ACA, you gotta use this ‘shame! shame!’ medi-card to get your contraceptives. Every doctor you go to will know your employer thinks you are a sinner. And now the government is burdening the religious conscience of the possibly non-Catholic person who has to use this undignified excuse for a medi-card. So now this person can bring a RFRA case against the government. And, honestly, who has the better case: the Sisters, who only have to sign a form? Or the employee, who can’t enjoy their rights under ACA without having a religion they don’t accept use their medi-card as a space to express conscience claims against their private health care choices?

122

Dean C. Rowan 03.28.16 at 5:25 am

Let’s suppose I’m an extreme pansexual. I’m into everything, from butts and elbows and earlobes to automobiles and butterflies and Oreo cookies. I don’t need you to point out to me the arbitrary distinction between legs and boobs. Nevertheless, we live in a regime that does want to make that distinction. Do you want me to win this argument?

The government is not “doing the coercing.” The government is respecting the First Amendment prohibition against telling religious practitioners that they’ll have to stop practicing their religion in situations that trigger an obligation to facilitate abortions. (I’m being devil’s advocate here.) The only difference from Lochner is the absence there of a clear constitutional proscription against establishment of religion. Ergo, employees and employers are free to bargain, so goes the tale. One factor driving that bargain is government mandated provision of insurance. You work (f/t) for McDonald’s and you get their insurance. You work for Dean’s Burgers (total employees: 4) and you have a federally facilitated avenue for getting insurance, because Dean’s doesn’t offer any. You work for a franchise of the national megastore Halos ‘r’ Us, a Christian limited liability partnership, and you get insurance that doesn’t cover contraception. These are all “relationship[s] between two persons.”

123

Dean C. Rowan 03.28.16 at 5:44 am

Also, we are not in an actual world wherein government shuts down only exposures of boobs, genitalia, etc., that are not perfectly harmless. Remarkably, government manages both to shut down harmless boobs and also to permit (by my lights) harmful exposure to sexually charged advertising. I *loathe* those billboards promoting so-called gentleman’s clubs situated in densely populated urban areas. They offend me, and I don’t approve of my kids’ being able to see them. Yet they’re perfectly legal, while, bizarrely, a comedian uttering the word “fuck” on the radio isn’t. If the government wants to help me enjoin those gentleman’s club ads, I’ll bite.

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Dean C. Rowan 03.28.16 at 6:12 am

Okay, one last stab tonight. You write, “Indeed, I would think RFRA itself should self-cancel in such cases.” I think you are pointing out how government accommodation of the behavior or belief of some encroaches on that of others. If so, this misses some background assumptions that are crucial to the operation of the legal system. One such assumption is that Congress doesn’t intend to effect an absurdity when it enacts a law. When reviewing a law, the courts are supposed to avoid imputing absurd results to the law. Thus RFRA should not be interpreted as authorizing religious people to direct the behavior of non-religious people, even if an argument could be made in economic or game-theory terms that such is its logical result. This is why we call them “judges.” And yet we see the standard for “substantial burden” decline precipitously and absurd results ensue.

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John Holbo 03.28.16 at 7:21 am

“this misses some background assumptions that are crucial to the operation of the legal system. One such assumption is that Congress doesn’t intend to effect an absurdity when it enacts a law.”

Well, I intended my argument more in the spirit of a reductio. We can’t possibly read RFRA as self-defeating. Ergo, if reading it as supporting the Sisters would ultimately be self-defeating, since consistency would require us to read it as also forbidding support for the Sisters, then RFRA can’t be read as supporting the Sisters. We can’t give everyone incoherently large spheres of religious freedom.

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John Holbo 03.28.16 at 7:27 am

“You work for a franchise of the national megastore Halos ‘r’ Us, a Christian limited liability partnership, and you get insurance that doesn’t cover contraception. These are all “relationship[s] between two persons.””

But, according to the ACA, you DO get insurance covering contraception, just not from Halos r Us, maybe. Right?

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Dean C. Rowan 03.28.16 at 3:18 pm

Right. I meant that you won’t get it from Halos ‘r’ Us, but also that the charge of government coercion is attenuated by the employment relationship, which remains an agreement between two “persons.” In some of those agreements, one of those persons is obligated to provide medical insurance to its employees, just as it’s obligated to pay for unemployment insurance and disability.

I think the “consistency” to which you refer that prohibits giving everyone too much religious freedom is the basis for J. Stevens’ and others’ gripe that RFRA itself is unconstitutional. In other words, the reason for supporting the Sisters–to respect their religious principles–is the exact reason the government should not support them–doing so treats their religious principles as a trump card (if you’ll pardon the expression) in violation of the Establishment Clause. Or something else?

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Plume 03.28.16 at 4:44 pm

It’s not this way, but it should be this way:

The real test for a religious exemption should be: Would you allow the same exemption for non-religious reasons? Do you? Etc.

As in, if a person chooses not to comply with the law, and offers up no more than “It is my personal feeling that I should not have to comply” . . . . and if the court would say, okay, you don’t have to . . . . then and only then should someone be able to do this by citing religious objections. That is, if we have equality before the law. If, OTOH, we are a theocracy, or a theocracy in the making, then we would allow those religious objections to be privileged above anything else.

In reality, since there is absolutely no evidence whatsoever to support the concept of divinity, and even less than zero evidence to support one interpretation of divinity over all others, we shouldn’t be basing our laws on this complete absence.
Someone’s religious views are personal, and they are welcome to them, but they don’t get to impose their views on others or use them to escape from adherence to laws that others can not escape from.

In reality, there is absolutely zero logic in privileging belief in ancient fictions above any other sort of personal belief. There is no difference between believing the Harry Potter books depict reality and that the bible does. Or that Elvis lives. Or Bigfoot. Or the Loch Ness monster. There is no essential difference, as far as connection with reality, between variations of religious beliefs themselves, as in worshiping Odin, Lugh, Zeus or Yahweh. It’s all a belief in fictions, and should have no bearing on our laws whatsoever.

It was a mistake to grant any religious exemptions, ever, in any case. This immediately denies equal rights to non-believers, and often, to believers of other faiths. And it’s obviously a slippery slope. Yahweh, for instance, demands the death penalty for people who get tattoos, wear mixed fabrics, eat shellfish, talk back to parents, plant more than one crop in the same field, fail to be virgin brides, etc. etc. etc. If someone can cite one tiny aspect of their preferred religious fiction to support avoidance of the law, why not these others? If they say they must adhere to the word of their god, and their god is a genocidal madman, what next?

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Dean C. Rowan 03.28.16 at 5:07 pm

In response to Plume @137, I’ll again recommend Brian Leiter’s Why Tolerate Religion? (full disclosure: I haven’t read it yet!): http://press.princeton.edu/titles/9839.html Spoiler alert: Leiter concludes there is no good reason to privilege religion over other modes of deeply held belief. I myself am not merely agnostic, but virtually apathetic about religion, by which I mean organized religion. I am unconcerned about an afterlife or an enduring relationship with a divinity. I have bills to pay, for crying out loud. Hell can wait. However, I can’t write off religious impulses so easily. It’s a common term of approval among the religious and non-religious alike to refer to certain human achievements as “inspired” or to credit a person’s “passion” for some undertaking. Those attributes are inseparable from religious impulses, even when an person’s use of them isn’t intended to invoke religion or spirituality. This is just part of being human. But the reason we “privilege belief” is historical and constitutional. The problem with RFRA and some of the court rulings applying the statute is an ordinary legal problem, namely, how and where to draw clear lines, here how to apply an exemption for a religious person that respects her equality vis-à-vis a non-believer without going too far and authorizing her to infringe on the non-believer’s rights.

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Plume 03.28.16 at 5:33 pm

@138,

Thank you for the link and the rec. Sounds like a very good read.

Not sure if the author addresses this aspect, but another major key here is this (at least for me): Nothing prevents a person, in any of these RFRA cases, from simply adhering to their own religious views via their own personal objections. As in, if they don’t wish to use contraception, or marry someone from the same sex, no one is forcing them to. They can object to these things via religion if they choose and just not do them. As far as I know, there are no laws on the books that say a person must use contraception, get an abortion or marry someone of their sex. All of these are voluntary actions, and every American is free to opt out of they have a problem with these things — for any reason.

The obvious solution to the religious belief quandary: don’t. Just don’t engage, if that’s one’s wish, in an activity that purportedly goes against religious belief. But that person simply should not have the right to prevent others from engaging in these things if they are legal. And if it’s a matter of public accommodation for a legal activity, they should not have the right to deny the voluntary actions of others. It’s none of their business. The owner of Hobby Lobby, for instance, is free to say no to contraception — for themselves only. He or she should never be able to impose their views on their employees, either via negation of a right or the forced adherence to those views. It’s none of their business, and it’s a denial of the religious freedoms of their employees to be forced to adhere, etc.

It surprises me that America has regressed to the point where this is even in dispute, much less that the forces of the religious right seem to be gaining ground and winning some of these cases.

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Dean C. Rowan 03.28.16 at 8:26 pm

Plume @139: “The obvious solution to the religious belief quandary: don’t.” This begs the question. Don’t what? Don’t participate in a government imposed health care system that promotes use of contraception, including abortifacients?

Stanley Fish has been over much of this territory. For example, in the New York Times in 2006 he wrote:

But what if the religion you espouse does not respect Madison’s “great Barrier” dividing the private from the public and indeed demands that it be breached? That is, what if instead of being a Protestant who believes (with Martin Luther) that faith, not works, is the way to salvation, you are a conservative Catholic or a conservative Mormon or an Orthodox Jew or a fundamentalist Muslim who believes that it is a duty, never to be relaxed, to act in accordance with the tenets of your creed, whether you are at home, in the shop, in the military, in the legislature, in court, in a restaurant, wherever. If faith alone is what is required of you, the restrictions on conduct established by civil law – you can marry only one woman at a time – will not be felt as an infringement on your religious liberty, for the location of that liberty is internal, and it can flourish even if its outward expression is curtailed. But if conduct in the world is what your religion demands of you, laws stipulating which acts you can and cannot perform will be experienced as a diminishing of your right of free exercise. In other words, if your free exercise claims are not made on behalf of the right religion – the religion that honors the public/private distinction – you’re out of luck, as Warren Jeffs will almost certainly be, at least with respect to this part of his defense.

Read the whole thing for context. There are distinctions to the present case. The Little Sisters hold they are being compelled to engage in conduct their religion proscribes. For many of us, that conduct seems at worst an “incidental effect” of the law. The law doesn’t prohibit them from engaging in conduct their religion demands, unless we regard the religious prohibition, “Thou shalt not facilitate access to abortifacients,” as an affirmative demand to perform negative conduct.

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TM 03.28.16 at 9:24 pm

Jon Stewart already explained the legal nuances of the case in exhaustive detail:

http://www.cc.com/video-clips/z4n7l6/the-daily-show-with-jon-stewart-sisters-act

133

TM 03.28.16 at 9:57 pm

Brett 54: “to demand that women who’ve sworn oaths of celibacy be provided contraceptives”

Nice try. In case you really are that misinformed, watch the Jon Stewart clip above.

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TM 03.28.16 at 10:52 pm

Dean, just out of curiosity: are there any cases at all where the courts upheld RFRA rights that were not consistent with conventional conservative religiosity (for example, religious groups that embrace same sex marriage, contraception, abortion, pornography, drug use other than mass wine, etc.)? There are no such cases, right (*)? In other words, isn’t it obvious that the deference of the courts to the religious arguments of some plaintiffs but not others constitutes a blatant violation of religious neutrality? How do judges and legal scholars try to justify this?

(*) For example, in the fight about same sex marriage, some religious groups did state that their religious freedom was infringed by the ban on SSM (and at least one religious minister was actually punished for officiating at an illegal same sex marriage), yet that argument never achieved any relevance in the legal and political debate, whereas the right of religious groups not to recognize SSM (which nobody ever even questioned) was always a big deal.

135

TM 03.28.16 at 10:57 pm

Brett, with all your grandstanding, would you mind retracting the gross misinformation which you committed to the internet at 54? Retracting would at least demonstrate that you weren’t intentionally committing a bald-faced lie.

136

John Holbo 03.28.16 at 11:24 pm

“The government got in this big, expensive pissing contest with the Sisters, just to prove”

The government didn’t bring the suit. The Sisters did. The Sisters are the plaintiffs here. The government is the defendant, not the other way around. The government didn’t allow exemptions from the ACA in order to pick fights. It clearly allowed exemptions from the ACA in the hopes of not having to pick fights. Now: if you want to yell about how a lot of nuns are determined to win a pissing contest, go right ahead. But clearly this was a fight the government wanted to avoid, but couldn’t.

137

Plume 03.29.16 at 12:39 am

@143,

“Anyway, all but the very worst governments make some accommodation for religion, for the most pragmatic of reasons: Religion is one of the few things that can motivate significant numbers of people to resist government at the risk of their lives. So it’s really stupid for a government to go picking fights with religion for trivial reasons.”

If we’re talking about Christianity and Islam, governments have been using these religions (and vice versa) for well over a thousand years to control populations and get them to do what they would otherwise not do. They don’t fear organized religion’s supposed ability to incite rebellion. Quite the opposite. They’ve successfully used it — or have been used by it — to control minds, force conformity, docility, authoritarian compliance and the like. Organized religion has, with few exceptions, sided with government to control the masses, repress them, oppress them, especially when it comes to sexuality and independent thinking.

Islam and Christianity are, by definition, authoritarian religions, based on obedience to a fictional lord almighty. They’re the epitome of “conservative” formations designed to control minds and force conformity to fictional norms. In America, with the exception of the abolitionists, and the black church at the height of the Civil Rights era, Christianity has been a tool for the Establishment, a hammer used to smash those considered “outcast” — in obvious contradistinction to the original message of Jesus. A hammer also used to repress and brainwash the young, especially, and worst of all from the reactionary point of view. That religiously inspired rebellion against authority is a pretty tough sell with the organized religion teaches obedience to authority.

Beyond that, as John says @146, the government didn’t pick any fight here. Religious nutcases did. Obama and the Dems were actually far too accommodating, which probably led to these lawsuits. It’s the proverbial give an inch routine. We never should have given them one single exemption. It was always a huge mistake.

138

Plume 03.29.16 at 12:44 am

Oh, and btw, Jesus never says a thing about abortion, contraception or same sex marriages — that we know of. If a person gets an abortion, or uses contraception to prevent unwanted pregnancies, or marries someone of their own sex, they haven’t gone against any of the teachings of the founder of Christianity . . . which makes these “religious” exemptions all the crazier, and the sanction against even questioning these beliefs crazier still.

139

js. 03.29.16 at 12:51 am

Let’s suppose I’m an extreme pansexual. I’m into everything, from butts and elbows and earlobes to automobiles and butterflies and Oreo cookies.

I should be following this thread more closely.

140

Dean C. Rowan 03.29.16 at 12:58 am

TM @144: Without doing thorough research on the topic, I consulted an article entitled, “Validity, construction, and application of Religious Freedom Restoration Act (42 U.S.C.A. §§ 2000bb et seq.),” which you won’t find freely available on the Web. It includes several sections and subsections pertaining to prisoners’ rights, including digests of cases involving prisoners whose challenges to prison rules were validated by courts under RFRA. For example, a 1994 S.D.N.Y. court “granted a preliminary injunction to plaintiffs who sought the return of their Orisha beads which they wore in conformity with the Santeria religion and which had been confiscated by Department of Correctional Services under a prison rule prohibiting inmates from wearing beads…” A 1995 E.D.N.Y. court “granted a preliminary injunction to Sufi Muslim state inmates prohibiting a correctional facility from enforcing a policy prohibiting the display of black dhikr (meaning ‘to remember’ in Arabic) beads, which inmates used to aid in reciting or recalling the 99 names of Allah…” A 1995 Fifth Circuit case “held that the District Court should not have summarily dismissed a Rastafari inmate’s action brought under the Religious Freedom Restoration Act…” The plaintiff’s suit challenged “prison grooming regulations that prohibited long hair and beards.” (Reversal of a summary dismissal doesn’t mean the plaintiff wins; it only means he doesn’t summarily lose.) Similarly, a 2002 D.D.C. ruling: “Rastafarian and Muslim inmates’ sincerely held religious beliefs forbidding them from cutting their hair or shaving their beards were substantially burdened by prison grooming policy prohibiting long hair and beards, as required to support their claim that policy violated RFRA.”

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Dean C. Rowan 03.29.16 at 1:00 am

js. @149: You do know that “following this thread” is what kids are calling it these days?

142

SamChevre 03.29.16 at 1:14 am

TM @ 144, Dean Rowan @ 154

Cases about prisoners are more likely RLUIPA than RFRA cases. Holt is probably the best-known (Muslim beard case).

Just off the top of my head, cases that meet TM’s request:
Ayahuasca (Gonzales vs O Centro Espirita…)
Eagle feathers (McAllen Grace Brethren Church) (often referred to as Soto)

143

Dean C. Rowan 03.29.16 at 1:19 am

SamChevre @144: Indeed, but these cases were culled from a survey of RFRA cases.

144

Dean C. Rowan 03.29.16 at 1:20 am

Er, address that comment directly above @153 to SamChevre @152.

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TM 03.29.16 at 8:39 am

Beards and beads are hardly counter-examples to traditional religiosity. More importantly, these cases weren’t challening any general laws, and they (as well as the Soto case) are related to personal religious expression. Hobby Lobby and the Little Sisters go several steps further than that. They really demand a right to be exempted from any government policy that they disagree with on even the most remotely religious grounds. I don’t think there are any non-conservative comparables and I find it extremely hard to believe that any court would even have looked at these cases if they weren’t brought by conservative culture warriors.

146

heckblazer 03.29.16 at 11:07 am

TM @ 144:
“are there any cases at all where the courts upheld RFRA rights that were not consistent with conventional conservative religiosity (for example, religious groups that embrace same sex marriage, contraception, abortion, pornography, drug use other than mass wine, etc.)?”

See Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal. Using the RFRA a Brazilian Christian sect got an injunction against the feds allowing them to import hallucinogenic tea from the Amazon; the Supreme Court upheld it on appeal by the government. Note that the decision was unanimous (Alito didn’t participate because arguments occurred before he was seated).

147

John Holbo 03.29.16 at 12:58 pm

“The Sisters’ insurance company is the Christian Brothers self-insurance plan. The Christian Brothers do not provide contraceptive coverage. The Christian Brothers has an ACA exemption already.

So, if the Sisters knuckle under, sign the form, it gets passed on to the Christian Brothers, who then, with the government’s blessing, ignore it.”

This is the first time Brett has contributed anything to this thread that isn’t plain wrong. So: credit where due. (I would not like to think Brett could accuse me of intellectual uncharity!)

There is a serious, unresolved confusion in the case, due to the relationship between the Sisters and the Brothers (Little Sisters & Christian Brothers, their TPA.)

The 10th Circuit ruled against them and said the Brothers can just circular file Form 700, in effect, due to them being ERISA-exempt. No biggie, then, as Brett says.

http://www.becketfund.org/wp-content/uploads/2015/07/LSP-Op.pdf

But the Christian Brothers don’t think that’s right. Nor does their lawyer. It’s not clear exactly what will happen, with so many moving parts. But this much is clear, I think: long-term, there can’t be some simple trick way in which organizations like the Sisters can simply select the Brothers as their TPA and – poof! – the ACA requirement goes away. (Ergo filling and filing the notorious Form 700 is pointless.) If that were the way of it, religious organizations could steamroller the government’s asserted interest in providing contraception and that would run smack into a little something called the Establishment Clause, I should think.

Read the emergency request for injunction, after the negative ruling by the 10th Circuit:

http://sblog.s3.amazonaws.com/wp-content/uploads/2014/01/13A691-application1.pdf

The Christian Brothers are co-plaintiffs because they believe they will be on the hook, too, if the Sisters file Form 700 with them. It’s hard to believe they won’t be. But part of the problem is that the machinery to handle all this stuff is still in the process of being built. So the question about how the machine works is, in a sense, unanswerable at the present time. But the Establishment Clause is not a dead letter, so one assumes eventually Brett – and the 10th Circuit – will end up wrong about this.

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Layman 03.29.16 at 1:04 pm

That aside, if (as Brett thinks) the Sisters can sign the form and doing so will have no effect whatsoever, it’s hard to imagine they’re substantially burdened by signing the form. It can’t be a moral or religious substantial burden, because the form is meaningless in their situation. They could argue that the government is making them sign a form unnecessarily – all that pushing of the pen! – but when did that act in itself become a substantial burden?

149

Jerry Vinokurov 03.29.16 at 3:15 pm

It’s hard not to conclude that the Sisters and the other plaintiffs are exercising bad faith.

There is no other conclusion. This is merely the latest stage in the right’s weaponization of the First Amendment: engineer a situation in which one’s religion grants a free pass to ignore generally applicable laws. We’re already seeing this extend to things that patently have nothing to do with actual religious doctrine, as when Duquesne University claims that allowing adjunct unionization would impermissibly burden their free exercise of religion. JH’s question is kind of interesting in a formal sense, but totally beside the point when it comes to what’s actually going on.

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Dean C. Rowan 03.29.16 at 3:30 pm

TM @155: “Beards and beads are hardly counter-examples to traditional religiosity.” Well, I was responding to your request for “any cases at all where the courts upheld RFRA rights that were not consistent with conventional conservative religiosity…” Santeria is not generally regarded as conventionally conservative, I think, though its history does intersect with the Roman Catholic church. But otherwise I concur with the distinctions you pose and with your political analysis of the courts’ amenability to hear the complaints of less staunchly conservative parties.

Signing the form does have an effect: it gives notice, ultimately to HHS, that the organization objects to providing coverage to contraceptive services. But the plaintiffs don’t want to do even that, because it’s an alternative “scheme” to deliver the services. In effect, the plaintiffs lodge their index fingers in their ears and sing, “La, la, la, la, la!” They don’t want even to affirmatively decline contraceptive service provision. They want to pretend there is no such thing as contraceptive service provision.

151

John Holbo 03.30.16 at 1:33 am

Well, things have moved on.

http://www.scotusblog.com/2016/03/court-seeks-new-way-to-decide-birth-control-cases/#more-240700

“From the specific wording of the new requirement, the Court appeared to have accepted — at least tentatively and maybe only as the basis for further exploration — the view of the non-profit hospitals, schools, and charities that any step they take would involve them in a violation of their religious objections to some or all contraceptive methods, but also to have accepted — again, perhaps only tentatively and for further analysis — the government’s view that it had to work through those non-profits’ existing health insurers to assure cost-free contraceptive coverage to their female employees of child-bearing age.”

A dead man’s switch!

Going forward, require every insurer to affirm, by filing Form 701, that they are NOT one of the providers who would have refused to sign the old, retired Form 700. All those who fail to file 701 shall be presumed to be conscientious objectors who, previously, would have been required to file Form 700. But now they don’t have to. A lot more mindless paperwork this way, but that’s small government for you.

For some strange reason, no one involved seems to be considering Brett’s position: namely, that the government’s interest is not in providing seamless, comprehensive contraceptive coverage at all. The government doesn’t give a damn about contraception, one way or the other. That was sheer pretext for offending a few nuns. For which governmental purpose, the relevant question would seem to be: what is the very most the government can do to mess with old nuns, for no good reason whatsoever, without triggering a RFRA violation. Yet for some strange reason, the Supremes did NOT ask plaintiffs and defendant to go off and figure out what is the frozen limit of the government screwing with nuns, just because. Instead, they asked them about how to secure seamless, comprehensive contraceptive coverage without making the nuns so much as lift a finger. How strange.

152

TM 03.30.16 at 11:16 am

156: “Ok, the nuns’ employees are not all nuns. Has anybody asked them if they want this sign formed? Religious organizations DO tend to hire co-religionists. They’re even allowed to discriminate on that basis.”

What an asshole BS. As if it mattered to anybody on the right what the employees want. If anybody might have an obligation to ask the employees what they want, it would be the employer, not the government (which btw makes rules not for particular employers and particular employees but for all of them).

In any case, BB is being totally illogical even by his standards. If the all employees (and their covered dependants) agreed with the Sisters on the question of contraception (which, even if they were coreligionists, would be highy unlikely given that the vast majority of Catholics use contraception), so if there were no question of any of the employees making use of contraception coverage, then the whole case would be moot anyway. The Sisters after all claim that they are compelled to assist people in getting unholy contraception, even indirectly. That, they claim, is the burden on their (and the Hobby Lobby owners’) conscience (and pace Brett not the hassle of being forced to sign a form for no reason at all, which I get it is only one step from burning heretics in BB’s libertarian fantasy world).

BB is really taking right-wing dishonesty to new standards in this thread. What is at stake in the Little Sisters and Hobby Lobby bad faith propaganda act is, and always was, whether employees of contraception-abhorring employers can be prevented from getting coverage under their employer health plan, with the result of making it a little bid harder for those employees to get contraception, making them jump through more hoops, finding a way to shame them as Holbe showed above. That, in addition to the propaganda effect, was always the whole point of the exercise. The fact that this goal will not be reached – employees will still get contraception if they wish – doesn’t make the intention of messing with other people’s lives just because they have power over them as employers any less disgusting. And that disgust is only topped by the disgust earned by Libertarian shills for the totalitarian power of employers.

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TM 03.30.16 at 11:19 am

And complaining about the government “Screwing with people”, while defending religious discrimination in the workplace (notabene for functions completely unrelated to religious matters) as if it were the most natural thing in the world. You just can’t make this stuff up.

154

Collin Street 03.30.16 at 11:21 am

Screwing with people is a major function of government, or else much the government does is utterly inexplicable.

See, as I see it, there are two possible explanations for the phenomenon you’re observing here.
+ the government does inexplicable things, randomly and to hassle people.
+ the government does things for good and proper reasons that you are too stupid to understand.

I mean, from your perspective the results would look the same, wouldn’t they: people doing things you couldn’t see an explanation for. But your explanation would require a huge organisation dedicated to the task of fucking with people for no benefit that even you can see,
whereas my explanation just requires that there be one person, untrained and unskilled, acting with an unearned and unjustified confidence: something that happens every day, something that I’m sure you’ve seen on the part of others.

Occam’s razor, Brett. My explanation is simpler, don’t you agree?

155

John Holbo 03.30.16 at 11:38 am

Brett, I’m beginning to suspect that you got your political philosophy from this Lonely Island video:

https://www.youtube.com/watch?v=gAYL5H46QnQ

“Grant this exemption to the GROOOUUUND!”

156

John Holbo 03.30.16 at 11:53 am

Come to think of it, I think maybe that Lonely Island video is a nice symbol for the whole case.

157

faustusnotes 03.30.16 at 12:17 pm

Zika is coming to America, probably by July. It will be widespread in the states that are working hardest against contraception, abortion and planned parenthood – states like Texas and Florida. It’ll be interesting to see how these opponents of contraception provision, these defunders of planned parenthood, these “substantial burden” folks in the legislature, start to act when their own constituents are facing down a wave of microcephalic zika babies and can’t get abortion.

It’ll be fascinating to see the state of Texas advising women to avoid pregnancy this summer, having gutted the mechanisms to do so.

And right before a federal election where defunding planned parenthood will be a central issue. Once “good” middle class southern white women start facing the substantial burden of abortion and contraception that their racist legislatures have been imposing, and realize it affects them too and not just “those” women, I wonder how they will vote?

The state should not allow a religious exemption for these things, full stop. Let the Little Sisters live up to their social responsibilities or take away their tax exempt status. Let’s see how well their religion survives in the modern world once it is not cosseted by the government …

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