I was pleased to join this amicus brief filed by several constitutional law scholars in the Hobby Lobby/Conestoga Wood litigation (thanks to Nathan Chapman for taking up the pen). The brief argues against the view that the Establishment Clause prohibits an accommodation of the religious claimants. My own views on the matter, reflected in various portions of the brief, are also contained here and here. A post by Kevin Walsh raising an important problem is here. Opposing views may be found here, here, and here. Here is the Introduction and the Summary of the Argument of the amicus brief:

This brief argues that the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (RFRA), properly applied, complies with the Establishment Clause. The brief responds to the recent proposal by several scholars that the Establishment Clause prohibits the government from accommodating “substantial burdens” on religious exercise, as RFRA does, when the accommodation imposes “significant burdens on third parties who do not believe or participate in the accommodated practice.”2 This brief does not address the issues directly before the Court, i.e., whether RFRA protects for-profit corporations like Hobby Lobby and Conestoga Woods, and whether either of those parties has a valid RFRA claim.3

The scholars’ proposed doctrine is contradicted by precedent, would needlessly require courts to analyze three speculative Religion Clause questions in most religious accommodation cases, and would threaten thousands of statutes that protect religious minorities.

First, precedent strongly supports the constitutionality of statutory religious accommodations, like RFRA, that allow courts to weigh the government’s “compelling” interests against claimant’s interests in religious exercise.

In Cutter v. Wilkinson, 544 U.S. 709 (2005) (Ginsburg, J.), the Court unanimously upheld the Religious Land Use and Institutionalized Persons Act against a facial Establishment Clause challenge. Guaranteeing “room for play in the joints between the Free Exercise and Establishment Clauses,” Cutter, 544 U.S. at 713 (internal quotations omitted), the Court held that a statutory religious accommodation, like RLUIPA or RFRA, that (1) prohibits “substantial burden[s]” on religious exercise, (2) is denominationally neutral, and (3) allows courts to take into account the government’s “compelling interest[s]” is constitutional. See id. at 720. An application of RFRA’s balancing test that does not take sufficient account of the government’s interests, including its interests in protecting third parties, would therefore fail under RFRA, not the Establishment Clause. While the Court has never invalidated a statutory religious accommodation that, like RFRA, enlists courts to evaluate the government’s interest in “substantial[ly] burden[ing]” religious liberty, Cutter nevertheless resolved a tension between prior cases about Congress’s authority to promote Free Exercise principles without running afoul of the Establishment Clause. See id. at 713-714. The Court should decline the scholars’ invitation to return to that doctrinal uncertainty.

Second, the scholars’ proposed doctrine requires courts to decide three vague Establishment and Free Exercise Clause questions. Under the proposed doctrine, a court facing a statutory religious accommodation will often face a difficult baseline question: does the statute provide a right to a third party that would be burdened by a religious accommodation, or is the statute preempted by a religious exercise interest, rendering null the third party’s purported statutory right? In cases like this one, the answer is clear. Under RFRA’s “rule of construction,” by remaining silent about RFRA’s applicability, the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (ACA),4 effectively incorporates RFRA’s balancing test into its own provisions. See 42 U.S.C. § 2000bb-3(b). If ACA, therefore, by incorporating RFRA, accommodates the plaintiffs’ religious exercise, plaintiffs’ employees simply have no right to plaintiff-provided coverage under the ACA regulations, and employees would not be burdened by plaintiffs’ religious exercise. Not every case will be so clear.

Furthermore, in every statutory religious accommodation case, a court would have to determine whether the accommodation would create a “burden” on third parties that is “significant” enough to raise an Establishment Clause question. The court would have to engage in speculative fact-finding about the effect of laws on third parties who, like in this case, may not be before the court. The court would then have to engage in common law rule-making to decide whether the accommodation created a burden “significant” enough to violate the Establishment Clause.

Because the Free Exercise Clause requires some religious accommodations, the court would also have to determine whether the Free Exercise Clause requires the accommodation at issue before it could conclude that the Establishment Clause prohibits it. See Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144-145 (1987) (“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.”). Under RFRA, this awkward Religion Clause three-step is unnecessary and entirely avoidable. RFRA already ensures that courts take account of the government’s interest in protecting third parties.

Third, with over 2,000 statutory religious accommodations, the federal and state governments have a long and admirable tradition of protecting minority religious belief and practice, particularly on moral questions about the beginning and end of life. The scholars’ proposed doctrine would cast doubt on a well-established legislative patchwork of religious liberty.

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