Those pressing the claim that an exemption in the contraception mandate cases before the Supreme Court would violate the Establishment Clause face a few challenges–doctrinal, textual, and historical. The one that interests me in this post is that the test they favor is in considerable tension with the RFRA framework. Under the interpretation of the Establishment Clause being pressed, it seems to me that the least restrictive means test that represents the third prong of the strict scrutiny standard in RFRA and RLUIPA is constitutionally suspect.

Recall the theory: religious accommodations are unconstitutional if they shift “significant burdens” onto a “focused and identifiable class of third parties.” For the moment, leave aside the “focused and identifiable” component. We know that under RFRA, the religious claimant must allege a substantial burden on religious exercise. If it does so, the burden shifts to the government to show that the substantial burden on religious exercise it has imposed is justified by a compelling governmental interest. But the government must also show that it is using the least restrictive means to achieve its interest. So, for example, the government cannot simply say that the contraception mandate is supported by its compelling interest in good health care, full stop. Its statement of its interest is invariably focused and refined by the need to demonstrate that it has used the narrowest means available–that means which least burdens the religious claimant–to achieve its interest. And the least restrictive means component of the RFRA test is, in fact, one of the points on which it has been argued that the government’s case for the contraception mandate is weakest.

Suppose one accepts the claim that any “significant” burden resulting from cost shifting onto third parties triggers an Establishment Clause claim (again, for the moment, set to the side the question of what constitutes a “focused and identifiable” group). It seems to me that one would also be saying that the least restrictive means test is at least presumptively constitutionally suspect. The more narrowly tailored a means is so as to avoid burdens on religious objectors, the more probable it becomes that the means selected will burden third party interests. There may perhaps be rare occasions when an accommodation imposes no costs at all on third parties. But very often this will look like a sliding scale: as the imposition on the religiously burdened party decreases, the imposition on third parties increases. And by the time that one gets to the least restrictive means, the sliding scale is very much calibrated against the third party interests. By that point, it will have become highly probable–in some cases verging on certain–that the means chosen will impose “significant” burdens on third parties.

Take these cases.

The claims to exemption that are being made under RFRA are resisted by the claim that the government believes that its interests in providing free abortifacient products to employees are compelling, and the means that it has selected are to require the private employer to pay directly for these products. That is a means that imposes all costs on the religious objector, and no costs on the third parties. But part of the response under RFRA is that if the government truly believes that its interest in providing these products is compelling, it can achieve that interest by less restrictive means than requiring individual private employers to pay for them. For example, it could use various tax strategies, such as the mechanism of tax credits. Or it could use the “accommodation” mechanism that it has used for some nonprofits (in fact, the government has itself called this stratagem an “accommodation,” suggesting that it believes that such a means is less restrictive than compelling employers to pay directly). Or it could exempt objecting employers entirely (as it does for those religious groups it has thought worthy of an exemption) and find some other means. Each of these mechanisms (and many others) would have the effect of alleviating the burden to a greater or lesser extent on the religious claimant, and would very often in consequence have the effect of increasing the burden on third parties. In fact, the meaning of “least restrictive means” and of precisely what such an obligation requires, for purposes of interpreting strict scrutiny under RFRA, is a little unclear, as Eugene Volokh details in this post.

But here we are not talking about RFRA; we are not dealing with what the government must do to comply with the statute. We’re talking about the Constitution; we are dealing with what the government may do without violating the Establishment Clause. Because the threshold of what constitute “significant burdens” on third parties in the Establishment Clause test being proposed is obscure to me, it is not clear at precisely which point the least restrictive means test would generate a successful Establishment Clause claim for third parties. But it would clearly do so at least presumptively. That is, if this theory about the Establishment Clause is right, it means that every time a party makes a RFRA or RLUIPA claim, any third party can intervene to bring an as applied Establishment Clause challenge alleging that the “least restrictive means” being urged would constitute a “significant burden” on their interests, and would therefore be unconstitutional if implemented.

One possible response is that this limitation on RLUIPA (and so also RFRA) is contained within Cutter v. Wilkinson. As I have briefly explained, I do not agree and think this a misreading of Cutter. Cutter itself dealt with a facial challenge to RLUIPA on the basis that RLUIPA violated the Establishment Clause–a challenge that the Court unanimously rejected. Cutter did not deal with an as applied challenge, so that anything it said on that front is dicta. Nevertheless, what the Cutter Court did say in part of that dicta is this: “Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” (emphasis mine). As I have explained, just looking at the text, that seems to mean that RLUIPA itself has incorporated whatever establishmentarian concerns were identified in prior case law as setting forth the constitutional limits of accommodation. And in the second part of that dictum, the Cutter Court did not purport to extend those limits beyond the prior caselaw. I plan to discuss this issue further in my next post on this issue. But for now it may suffice to note that it may be for this reason that, so far as I know, one has not seen as-applied third party intervenor claims brought in RFRA or RLUIPA cases under this Establishment Clause theory (however, if readers know of such claims, I’d be very glad to hear about them, as I have not had a chance to do a thorough search).

What of the matter of limiting the new Establishment Clause test to those “focused and identifiable” third parties who have suffered “significant burdens?” I note first that this particular feature of the test being proposed is not found in the case law on this question–neither in Thornton nor in Cutter. I have speculated that the “focused and identifiable” language is being used in order to circumvent what would otherwise be some implausible results–forbidding accommodation of conscientious objectors, for example. But another unusual byproduct of this Establishment Clause theory is that “focused and identifiable” third parties are the very parties whose significant burden the government could itself mitigate while at the same time complying with the least restrictive means requirement under RFRA. That is, if the government can identify who is being significantly burdened as a result of its statutory obligation to comply with the law (which in turn is the result of its need to achieve its compelling interest), then it ought to be the government’s task to take care of those third parties. That’s the nature of the least restrictive means burden: it is the government’s task, not that of private third parties, to achieve its interest in such a way as to impose the least burden on the religious claimant. If that means that third parties are burdened, that’s the government’s political problem. It is not a constitutional problem.

But that’s not the result for the proponents of the Establishment Clause theory under discussion. For them, the government can wait around for a third party to bring an Establishment Clause claim against itself (or against a religious claimant qua federal agent), thereby possibly escaping its legal obligation to use the least restrictive means to achieve its compelling interest. That is exactly because under this theory, the least restrictive means component of the statutes automatically and as a matter of course triggers as-applied Establishment Clause challenges on behalf of third parties, the details to be worked out in court.