Illinois Law Review Symposium on Substantial Burdens…and a Few Thoughts on the New Accommodation Skepticism

The University of Illinois Law Review has posted a set of essays on the issue of substantial burdens. These essays were meant to coincide with the Supreme Court’s Zubik decision, and they did, though the Court did not really oblige in entirely avoiding the substantial burden issue. So much the better. Kudos to Michael Helfand in particular for assembling such a varied little troop. I was pleased to be among them.

My essay, Substantial Burdens Imply Central Beliefs, takes the Brennan-esque view that any society that is amenable to religious accommodation is going to have to involve itself to some extent in evaluating religious claims, brought by religious claimants, that the law imposes upon religious exercise. “Religious” is the key term here. In the end, and once we have taken on the business of “religious” accommodation, there is no avoiding a good bit of church-state entanglement. To render the substantial burden inquiry coherent, we need some concrete, but generous, idea of what religion is. Here the essay briefly considers the systematic nature of religion, and the sense in which courts can only evaluate whether a law imposes a “substantial burden” on religious exercise by recourse to a background of interlocking beliefs and exercise of which the exercise at issue forms one part. Efforts to avoid this type of entanglement, and to segregate civil or secular burdens from religious burdens, are infeasible and, more importantly, miss the very point of religious accommodation–an official acknowledgment of specifically religious reasons (not personal reasons, or financial reasons, or emotional reasons, or some other kind of reasons) for non-compliance with the law. The effort to isolate civil/secular reasons from religious reasons is itself the latest iteration of an old debate in liberal political theory. Here, and with a few examples from the Hobby Lobby case, I argue that it is unsuccessful. It fundamentally misunderstands the religious dimension of the objection. It mistakes a claimant’s money for its principles.

This is the first of two projects I’ve been working on concerning what I am calling the new accommodation skepticism. Over the last few years, religious accommodation has come under fire from those who are largely indifferent, unsympathetic, or hostile to religion–particularly organized religion, and most particularly Christianity. But there is a new, emerging skepticism from other quarters–from those who are sympathetic to religion and may themselves even be religious believers. Such skepticism is not opposition to accommodation full stop. But it does observe some of the ways in which the regime of religious accommodation prevalent since the 1960s has had profound, and profoundly non-neutral, and indeed often profoundly regrettable, effects on the American legal conception of religion, a conception that is achieving ever-greater salience in the so-called “Rise of the Nones” and other contemporary religious phenomena.

More on Yesterday’s Decision in Zubik

Marc has posted a rundown of yesterday’s decision in Zubik v. Burwellthe ACA case. I’d like to add just a few quick observations.

Some commentators, including the New York Times, have decried the result as the inevitable consequence of having an eight-member Court, which prevents the formation of five-person majorities in close cases. If only the Senate had confirmed Merrick Garland, we wouldn’t be in fixes like this. But it’s worth noting that the Court’s opinion yesterday was unanimous. All eight Justices joined it in full. If Merrick Garland had been on the Court, it likely would have been 9-0. In fact, an unsigned, per curiam opinion like yesterday’s traditionally signals that the Court does not see a decision as particularly significant or controversial.

Now, it’s true that Justice Sotomayor, joined by Justice Ginsburg, wrote a separate concurrence. But, in Supreme Court practice, a concurrence signals that the author agrees with the Court’s reasoning and wishes only to offer further support or highlight certain aspects of the case. And that’s what Justice Sotomayor did here. She went out of her way to highlight the fact that the Court was not ruling on the merits of the case. I’m not sure that was entirely necessary; the Court itself expressly said it was not ruling on the merits. But, anyway, her writing separately doesn’t reflect disagreement with the Court’s reasoning.

So the Court does not seem to have been divided at all. Now, it’s possible, as some speculate, that the Court did a quick vote after oral argument, saw that there would be no clear majority on the merits, and reached for a compromise that would preserve the Court’s credibility while allowing further consideration down the road, when the Court is back to nine members. But that’s more than we can know right now, and, at least to me, there seems another, more likely explanation for the Court’s unanimity. The Court determined that the whole dispute may well be unnecessary.

After oral argument and supplementary briefing in March, it became clear to the Court that there might be a way out of the conflict the lower courts had missed. It might be possible for employees to receive coverage for contraceptives without requiring employers to file the so-called “opt out form” — the form to which the petitioners had objected on religious grounds. As the Court explained:

Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

In other words, the parties might be able to reach a settlement that would satisfy everyone. The Supreme Court is not the place to hammer out such a settlement, though, so the Court remanded the dispute to the lower courts, which, it said, were in a position to “allow the parties sufficient time to resolve any outstanding issues between them.” (Hint, hint). In that event, the dispute would be moot–and it is hornbook law that courts, including the Supreme Court, do not decide moot issues. As one commentator observed, what the Court is saying is, “We don’t need to decide this case right now. The parties should be able to work it out for themselves.”

Although the Court did not rule on the merits, it’s hard not to see this as a loss for the Obama Administration. A determination that the dispute may not have been necessary at all is, implicitly, a judgment on the Administration’s strategy in these cases. The Administration has taken a very hard line on the Contraception Mandate, harder than it needed to in order to achieve its stated goal of providing cost-free contraceptive coverage for women. Two terms ago, in Hobby Lobby, the Court ruled that the Administration could reach that goal without requiring for-profit corporations with religious objections to cover contraceptives in their health plans. Now, the Court has suggested the Administration can reach that goal without requiring religious non-profits like the Little Sisters to violate their religious convictions. So why did the Administration take such a hard line? Why didn’t it accommodate the concerns of people with religious objections to the mandate–an extremely small group, it must be conceded–especially as accommodation wouldn’t have changed the ultimate outcome? It’s almost as though the Administration had goals other than women’s health in mind.

Zubik v. Burwell Remanded

Today the Supreme Court issued a short per curiam opinion vacating the circuit courts’ respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the “substantial clarification and refinement” in the claimants’ and the government’s respective positions that the Court claims was generated by the supplemental briefing. To wit:

Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company….The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

Disagreements as to implementation to be worked out below.No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court’s order essentially to make crystal clear to the government that she was sympathetic to its views.

Survey Finds a Majority Agree with the Little Sisters of the Poor’s Fight Against the HHS Mandate

On April 19, 2016, the Catholic News Agency reported on the results of a new Marist Poll survey relating to the Little Sisters of the Poor’s pending litigation before the U.S. Supreme Court. The article begins as follows:

A new survey says most Americans think the Obama administration’s federal contraception mandate is unfair to the Little Sisters of the Poor and other religious groups defending themselves before the U.S. Supreme Court.

little sisters

About 53 percent of Americans said the process required by the government is “unfair,” while only 32 percent did not, according to a new Marist Poll commissioned by the Knights of Columbus.

The federal government has exempted many other organizations’ employee health care plans from a requirement to provide contraception and drugs that can produce abortions. But it has no exemption for the Little Sisters of the Poor, who help run houses to care for the elderly poor.

The full text of the article appears here.

A Few Thoughts on the Nature of Substantial Burdens on Religious Exercise

I’ve put them down over at the Liberty Law blog. A bit:

Making any sense of the inquiry would require adopting some definitions. A burden on religious exercise is a weight on it—or, less, metaphorically, it is simply an interference with religious exercise. “Interfere” is the term used by the Religious Freedom Restoration Act in its “Congressional Findings and Declaration of Purpose”: “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” Interference may be intentional or unintentional, but it is interference in either case. Interference might be compulsion to do or not do certain things, but it also includes any governmental act that would frustrate the claimant’s capacity to exercise his or her religion. A governmental act that interferes with the ability of a claimant to believe or practice his or her faith burdens it.

What about “substantiality”? Here, the text of another religious accommodation statute, the Religious Land Use and Institutionalized Persons Act of 2000, suggests an answer: The substantiality of the burden is to be measured against the “system of religious belief” of which the religious exercise at issue forms a part. A system is a group of interdependent items—in this case religious beliefs and practices—that together constitute a unified whole.

This is a small fragment of what will be two longer reflections on the subject: one in an on-line symposium of the Illinois Law Review and another in a player to be named later. More soon.

Supplemental Briefing in Nonprofit Contraception Mandate Litigation Filed

The claimants and the federal government have now both filed their supplemental briefs, as requested by the Supreme Court in the order I discussed here. Reply briefs are due April 20.

After denying that any change to what it presently offers to nonprofits is needed, the basic thrust of the government’s brief is that (1) the Court’s proposal would not work for self-insured claimants; and (2) the Court’s proposal would only work for others “but only at a real cost to its effective implementation.” At page 15, the government says this about those claimants with insured plans: “In theory, however, the government could provide that the same  legal obligations arise following any request by an eligible employer with an insured plan for an insurance policy that excluded contraceptives to which the employer objects on religious grounds.” The exact mechanism through which this would work for self-insured plans remains unclear. The brief concludes by asking for a definitive resolution from the Court.

The claimants’ brief argues that (1) yes, as to insured claimants, there are many ways in which the employees of objecting claimants can receive the free coverage the government wants them to receive: it could impose a regulatory requirement on insurers to provide a separate plan for such employees, not backed by the threat of what are described as “draconian penalties” on the employers. Employees would have 2 insurance cards instead of 1; and (2) as to self-insured claimants, there is a related less restrictive means as well: “If commercial  insurance companies begin making truly separate contraceptive coverage available to the employees of petitioners with insured plans as contemplated by this Court’s order, then there should be no legal obstacle to allowing additional individuals to enroll in those plans, whether directly through the insurer or through the Exchanges. Indeed, making such contraceptive-only plans available to employees of petitioners with self-insured plans would underscore that such coverage is truly separate from the coverage provided by petitioners that use commercial insurers, as employees of other employers would be receiving essentially the same contraceptive-only policies.” (20)

Stay tuned.

The Supreme Court Order in the Little Sisters of the Poor et al. Cases

This week, the Supreme Court issued a somewhat unusual order in Zubik v. Burwell (the nonprofit litigation against the Obamacare contraception mandate) asking for more briefing. Here are the substantive provisions:

The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.

Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

I can’t really improve on the insightful commentary of my friend, Rick Garnett, on what this might mean. It’s hard, as he says, to escape the conclusion that this is probably good news for the petitioners (after the bad news of Justice Scalia’s passing). And it’s always the politically expedient thing to put the onus on insurance companies.

But there is one way in which the order might not be so good from the claimants’ perspective. What of self-insured claimants? Any resolution to the case that would simply rely on insurers to resolve this issue would not account for those nonprofits, like the Little Sisters of the Poor, who self-insure through a trust called the Christian Brothers Employee Benefits Trust. Shifting the (substantial) burden of compliance to the “insurer” in this sort of case is not shifting it from the employer.

Something to watch in the upcoming briefing.

Another Mandate Defeat Teed up for the Supreme Court

Another defeat for the government. The Becket Fund is reporting that the Eighth Circuit, in two decisions released last week, affirmed a lower court’s grant of a preliminary injunction in favor of Dordt College and Cornerstone University, both religious nonprofits, among other entities, against enforcement of the Affordable Care Act’s contraceptive mandate, as well as the so-called “accommodation,” which permits religious entities not to comply with the direct provision of contraceptive coverage by signing a certification (the “Form 700”) that is then sent to a third-party administrator. That administrator then notifies the objecting party’s insurer, who then is supposed to arrange for coverage. This accommodation has its own problems, most clearly that many religious organizations do not feel comfortable appointing a third-party to do something which they themselves find objectionable.

The decision found that “by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and Cornerstone’s exercise of religion.” Because of that substantial burden, the government was required to show that the ACA mandate and accommodation served compelling government interests and did so through means least restrictive of the constitutional protection of free exercise. Relying on a similar, recent case, the appellate panel determined that the government had not used the least restrictive means, but did not rule on whether the government was furthering a compelling interest.

Significantly, the Court did not question Dordt and Cornerstone’s “sincere religious beliefs” that opposed them to the mandate and accommodation. This is in contrast to the case we looked at last week, where the dissenters argued that was precisely what the panel did in rejecting similar claims.

A number of religious non-profit petitions are now waiting Supreme Court review, though it is unclear whether the differing Circuit opinions are going to move the Supreme Court to take a case so soon after Hobby Lobby. However, the fault lines of the decisions are clear. It seems difficult to believe that the government would prevail on whether the ACA mandate and accommodation is the least restrictive means of achieving its interests, whatever the Court’s view of what those interests are. It is worth noting that those interests are not without challenge, including by federal appellate courts, as in a 2013 opinion by Judge Janice Brown, although they were assumed for the purposes of argument only in Hobby Lobby. Yet the stubborn, unknown fact on which the decision may hinge is not strictly a legal one: can the Justices understand that the accommodation itself can burden religious freedom, even if the government does not think it does? That in turn will require them to decide whether the challengers’ beliefs are sincere and given their place in the “scribal” hierarchy, that conclusion may be too much to expect.

Scribes and Holidays

Thanks to Marc and Mark for asking me to blog with them for the next few weeks. As I am just a law-and-religion amateur, being able to exchange thoughts with scholars of their caliber is a real honor.

To get things started, I haven’t seen much about this dissent a couple of weeks ago by a group of five Tenth Circuit judges from a denial of an en banc hearing in cases involving the contraceptive mandate as applied to non-profits.  The tenth Circuit, sua sponte, considered whether to rehear the cases en banc; the plaintiffs, who were challenging the mandate, had lost before the initial panel. The full court denied rehearing en banc , but five judges were sufficiently disturbed to write a strongly-worded dissent. The core of their argument is as follows:

Put another way, the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative?

This is the real danger, I think. You have what John McGinnis calls a “scribal” caste without much (as Mark rightly notes) personal connection to traditional religious thought or concepts determining what is “really” important to the religion of the litigants.  It is no surprise that in such cases, the judges favor the state, because how serious could religious people actually be about matters the scribes see as unimportant?

A second, non-legal topic. My wife and I have three grade-school children, and for the first time this year, I heard multiple conversations over the summer about the multitude of school holidays that need to be accommodated into the schedule. Not just Rosh Hashanah, Yom Kippur, Christmas and Easter, but also Eid and the Lunar New Year are now recognized in the New York public schools; the Hindu festival Diwali is also being considered. So on the one hand, legal scribes reject accommodation for beliefs not considered “core,” yet other arms of the state are increasingly conceding the centrality of expression of religious beliefs in a very public way. Since as a general matter, I believe culture eventually prevails over formal legal doctrine, this kind of contrast is something to watch.

Thomas More, Villain

Anton Lesser Thomas More

Anton Lesser as Thomas More in Wolf Hall (BBC)

When it comes to up-market historical fiction, nobody delivers like the Tudors. There’s so much entertainment value in that Renaissance dynasty: royalty; costumes; cool accents; lust and murder; political and religious intrigue; the works—plus enough history to make you feel virtuous for watching. In the 1930s, studios turned out films like The Private Life of Henry VIII and Fire over England, which, for my money, still has the best portrayal of Elizabeth on film, by the great British actress Flora Robson. In the 1960s, there was Anne of the Thousand Days. Forty years ago, PBS broadcast Elizabeth R and The Six Wives of Henry VIII. More recently, there was Showtime’s The Tudors. And now on PBS’s Masterpiece there is Wolf Hall, a BBC dramatization of Hilary Mantel’s 2009 novel.

All historical fiction involves anachronism, of course, and depictions of the Tudors often reveal more about contemporary issues than they do about the past. Robert Bolt’s A Man for All Seasons portrayed Thomas More as a liberal dissenter from state ideology, a man committed to individual conscience and the rule of law. (In the 1960s, liberals identified with such people). Glenda Jackson’s 1971 portrayal made Elizabeth an icon for the rising feminist movement.

I was able to catch an episode of Wolf Hall on Sunday, and it seems to me the new series likewise reflects our current cultural moment. Maybe I spend too much time thinking about these things, but to me it is impossible to miss the allusions to current debates about rational government and religious belief. The message, for religious liberty, is not a congenial one.

Wolf Hall—which, incidentally, has great production values and wonderful performances, especially by Damian Lewis as Henry VIII—inverts the conventional portrayal of the Henrician Reformation. Most past film and television versions, even those sympathetic to Henry, show More as a kind of hero, a noble, if misguided, martyr for freedom of conscience. In Mantel’s version, by contrast, it’s Cromwell, the supporter of state orthodoxy and More’s tormentor, who is the hero. And More, the man who resisted the state from religious conviction, is the unalloyed villain.

Now, More was a more complicated figure than widely understood. Even saints have failings. He may have been, as Swift famously wrote, “a person of the greatest virtue this kingdom ever produced,” but, as chancellor, he persecuted Protestants and approved burning heretics at the stake. Mantel’s portrayal goes beyond offering a helpful corrective to the conventional wisdom, though. Her More is not deeper or truer to the historical record. He is simply evil, a nasty piece of work—cold, fanatical, and sadistic.

Mantel’s Cromwell, by contrast, is warm, self-effacing, and pragmatic, even wistful—a family man, though with a ruthless edge. As between him and More, he is easily the more reasonable. Religious enthusiasm is not for him; he is far too insightful and levelheaded. He is also more compassionate. When More tells him that torture is for the victim’s own good—the real More forcefully denied that he ever tortured anyone—Cromwell is aghast. Cromwell is far too tender-hearted to believe something like that. He cannot bear to see someone burned at the stake for heresy. More, we gather, would be delighted.

I know nothing about Mantel’s politics. Perhaps her choices in Wolf Hall are purely aesthetic. Maybe she set herself the artistic challenge of portraying Cromwell, one of British history’s great villains, in a favorable light. But I’m guessing she has an agenda. Increasingly, secular liberals are losing patience with claims for religious liberty, particularly from traditionalists who dissent from progressive orthodoxy. Only fanatics could object to progressive goals like the Contraception Mandate and same-sex marriage, they believe, and it’s wrong to accommodate such people. Accommodation encourages backward and malevolent attitudes that cause innocent people grave harm.

In its biased portrayal of More, British history’s great example of religious resistance to state orthodoxy, Wolf Hall is sending its audience a message: Don’t think this man was at all admirable. He was a dangerous head case. And, by extension, be careful of his analogues today, who continue to oppose religious fanaticism to tolerance, reason, and progress. Cromwell, and pragmatic people like him who protect us from the forces of reaction, are the real heroes.

It’s a powerful message, and one with increasing influence. Perhaps this explains why PBS is advertising Wolf Hall as “a historical drama for a modern audience.” The fact that this hatchet job on Thomas More appears in an impeccably well-done BBC production—surely the gold standard in upper middle class entertainment—shows how fast our culture is changing, and how much work defenders of religious liberty have before them.

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