The U.S. District Court for the Eastern District of Missouri has rejected the RFRA and Free Exercise claims of a Catholic who owns a closely held business with 87 employees.  You can get a summary of the decision here, though I must respectfully disagree with Professor Friedman about two things: (1) the district court’s opinion is not “extensively reasoned.”  The reasoning with respect to both the RFRA and Free Exercise Clause claims is shoddy and quite summary. (2) The fact that this judge was appointed by President George H.W. Bush is not relevant.  The political party of the president who appointed a district judge often pops up in media accounts of a particular decision, but it just is not material to a decision that the district judge issues some 20 odd years after the appointment.

Rather than go through the facts, which you can get at Professor Friedman’s site or by reading the short opinion, I thought I’d offer two critical comments about the decision.

1. The court makes the following claim, supported directly by no case law at all: “Laws substantially burdening the exercise of religion often discourage free exercise by exacting a price for religious practice: plaintiff must forfeit a benefit, pay a fine, or even face criminal prosecution.”  There is a good reason why the court cites nothing for this proposition: it is not the law.  The court goes on to discuss Wisconsin v. Yoder as somehow relevant to its view of the law.  But nowhere in Yoder does the Supreme Court say that the burden on religious conscience *must* be supported by a willingness of the religious claimant to suffer criminal prosecution (or a fine or the loss of a benefit).  There is a difference between a necessary and a sufficient condition, and it seems to me that this court has not perceived it.  I should think it would be a major revision of existing law under RFRA to require that a religious claimant be willing to suffer criminal punishment in order to deem his or her objection a “substantial burden.”

2.  Compare these two statements, both of which appear in succession in the opinion:

Statement #1: “[Plaintiff] is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”

Statement #2: “RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others.”

Here’s the comment.  If “RFRA is a shield, not a sword,” then why should RFRA protect a religious organization’s right to “discourag[e] employees from using contraception.”  Wouldn’t that be “forc[ing] one’s religious practices upon others.”  Wouldn’t such advocacy on the part of the employer, if protected  by RFRA, be an example of the use of RFRA as “a sword”?  And what exactly is the scope of the argument?  Can the Catholic Church use RFRA as a “sword” to protect its right not to offer contraception services in its health plans?  Or is this ill-conceived shield/sword metaphor limited to the context of secular employees who make religious freedom claims under RFRA?