When it rains it pours. Wheaton College, a Christian liberal arts college in Illinois, filed a federal lawsuit yesterday in the District of Columbia (the same jurisdiction in which Belmont Abbey filed) claiming that its constitutional and statutory rights are violated by the Mandate. Causes of action include RFRA, free exercise, free speech, and an APA claim. Wheaton’s specific complaint has to do with providing “health insurance for abortion-causing drugs, abortion procedures, and related services.” “Wheaton College has no conscientious objection to providing coverage for non-abortion-causing contraceptive drugs and services.” (¶ 39)
States’ Lawsuit Against the HHS Mandate Dismissed
Yesterday was an active day for the HHS Mandate litigation. The U.S. District Court for the District of Nebraska dismissed an action by several States (Nebraska, South Carolina, Texas, Florida, Ohio, and Oklahoma) and several organizational and individual plaintiffs against the mandate, also on grounds of standing and ripeness.
The organizational and individual plaintiffs’ claims were dismissed on the ground that their health plans would be grandfathered in, and that the claim that they would be “trapped” in their plans, without any real allegation that they were planning to change their plans, was too “speculative” to serve as a basis for standing.
Likewise, the States’ claims of injury, said the court, were founded “in layers of conjecture” about what would happen if religious employers stop insuring and the possible effect on the States’ Medicaid programs. These conjectures were too speculative to confer standing.
Just like (amazingly, almost exactly like) the D.C. District Court, this court ruled on the ripeness claim even though technically it did not need to. Notwithstanding the fact the existing rule “should be considered ‘definitive’ by virtue of its formal promulgation,” the court found that the “tenative nature of the Department’s position” counseled declining review at this point.
I’m sensing a pattern here…
The Eighth Circuit on “Substantial Burden”
The Eighth Circuit has held that a defendant with religious objections may have the right under the Religious Freedom Restoration Act to refuse to rise when a judge enters the courtroom. The defendant in a prosecution for conspiracy and providing material support to terrorist organizations refused on several occasions to stand up when the court convened. After explaining that the First Amendment did not give the defendant a right not to rise, the judge found the defendant in contempt of court twenty times for refusing to stand up. On remand, the Eighth Circuit has instructed the District Court to determine whether standing in court is the “least restrictive means” of achieving the concededly compelling interest of “maintaining order in the courtroom.” The Eighth Circuit also indicates, at the end of the decision, that it will accord considerable deference to the District Court on this score.
Because there has been a bit of discussion lately in the context of the HHS Mandate about what constitutes a “substantial burden” for RFRA purposes, I thought to highlight that portion of the Eighth Circuit’s discussion. The District Court had evaluated the issue of substantial burden by comparing the behavior of other Muslims, noting that they had no problem with standing up. That comparison was rejected by the Court as improper: “such considerations are irrelevant in the RFRA context so long as Ali’s objection to the pretrial order was rooted in her own sincerely held religious beliefs.”
Also important is the issue of “inconsistency.” Apparently the defendant stood up for the jury and in other contexts, but did not stand up for the judge. The District Court found this to be evidence of “inconsistent” adherence to her religious belief (even though the defendant explained the difference as being one about outward shows of respect). The Eighth Circuit again rejected inconsistency as a gauge to measure substantial burden:
[F]ocusing on Ali’s “inconsistent” application of her belief in refusing to rise to honor the court but standing so that prospective jurors could see her is not appropriate in the RFRA context . . . . [T]he court erred by evaluating the orthodoxy and sophistication of Ali’s belief, instead of simply evaluating whether her practice was rooted in her sincerely held religious beliefs.
This is relevant language, because one sometimes hears supporters of the mandate say that a burden really cannot be that substantial if either (a) some, or even many, Catholic organizations have provided funding for contraceptives in various other contexts; or (b) the particular Catholic organization in question has inconsistently adhered to its belief that providing funding for contraceptives is wrong. But if the Eighth Circuit is right, then these sorts of arguments are not relevant to assessing the question of substantial burden for RFRA purposes.
The case is United States v. Ali, 2012 WL 1970776 (8th Cir. June 4, 2012).
A Poor Editorial
This is a silly and uninformed editorial. There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it. But this editorial is about the legal challenge to the mandate. And it calls that challenge “built on air.” Actually, it is built on the Constitution and a federal statute, and we’ll soon see whether those foundations remain solid enough to support it.
The editorial does mention the Constitution and the federal statute. But what it says misrepresents both. It also fails to mention that the original mandate — and not the putative change in plans alluded to by the President in February — is at present the law. The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience. And it makes the following colossally stupid statement about RFRA: “In 1993, Congress required government actions that “substantially burden a person’s exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy.” Can anybody figure out how the second sentence follows from the first? Did anyone at the Times think to check with a lawyer before writing this? How about a law student?
There are arguments to be made in defense of the mandate. Surely the government will make them in court. But this editorial neither makes nor even references any of them. What an embarrassment.
RFRA News Item
Here’s a story for The Hill about RFRA and the HHS mandate by Elise Viebeck to which I contributed some thoughts. The story is right that RFRA had broad bi-partisan support back in 1993, including from the late Senator Ted Kennedy. Employment Division v. Smith elicited displeasure across the aisle. Different times.
Notre Dame Files HHS Mandate Complaint Against Obama Administration
The text of the complaint is here. A whopping 43 other Catholic dioceses and organizations have also filed suit today (whoa). A few thoughts about this complaint:
- The leading cause of action is RFRA (beginning at paragraph 202). This makes sense as it is the strongest legal claim.
- On the free exercise claim, have a look at paragraph 235. ND obviously knows that alleging a substantial burden alone is not sufficient to make out an FE claim. It therefore emphasizes that the mandate is not a neutral law of general application “because it is riddled with exemptions.” That technically is a claim about general applicability. A law can be facially neutral inasmuch as it does not by its terms single out religion for discriminatory treatment. But even if it does not discriminate on its face, a law may not be generally applicable if it is loaded with exemptions.
- Also look at paragraph 236. ND is not only making a claim about the lack of general application. It is also saying that the Administration made this regulation knowing that it would burden ND’s religious beliefs. That knowledge is in turn made the basis for a claim of “targeting” of religion. This claim, if accepted, implicates the “neutrality” component of the Smith test. This is an interesting claim to watch, inasmuch as I am uncertain whether knowledge is sufficient to ground a claim of discriminatory purpose (in the criminal context, sometimes knowledge is deemed sufficient — see, e.g., the law of conspiracy).
- ND is also making an “excessive entanglement” claim which implicates the Establishment Clause. “Excessive entanglement” with religion is the third prong of the Court’s still operative Establishment Clause Lemon test, and it is something the Court at least indirectly emphasized in the recent Hosanna-Tabor decision. This sort of claim is also raised at paragraph 270 and following.
Also have a look at our friend Rick Garnett’s comments at Mirror of Justice.
The HHS Mandate at Yale Law School
I was pleased to participate in a panel at Yale Law School yesterday sponsored by the Catholic Law Students’ Association and the St. Thomas More Chapel dealing with the HHS Mandate. I learned a great deal from my co-panelists, Matthew Boudway of Commonweal and Ashley McGuire of the Becket Fund. I thought I could make myself most useful by focusing on the federal legal framework within which the mandate is likely to be assessed, and my comments drew from many of the posts and discussions about it here at CLR Forum (with maybe a little more emphasis on the individual assessment exception to Smith than some might think warranted). And I was pleased at the number of interested folks who attended and the thoughtfulness of the questions.
Thanks to Christian Burset for putting the event together.
The Immanent Frame on the HHS Mandate
I enjoy reading The Immanent Frame blog because it offers insight to a non-specialist like me in the fields of the sociology of religion, religious studies, the political science of religion, the anthropology of religion, and many other areas of importance to law. It is in general a terrific blog.
That is why I was disappointed overall by the opinions about the legal implications of the HHS mandate offered by a panel of experts assembled by the editors there. Of course, there are many things to discuss with respect to the mandate, and law is only one of those things. It would have been interesting to see the opinions generated by a panel which wanted to discuss those other things. But the panelists, only one of whom is a lawyer, seem actually to want to discuss law in their opinions: many of them talk about the Constitution, religious accommodation, religious liberty, and legal rights. The problem is that when they talk about religious liberty or the Constitution, they are often dismissive or derogatory, but they say close to nothing about what the law actually is. There are some references to the Hosanna-Tabor case (which has almost nothing to do with the issues here) and to a corporate speech case (which has exactly nothing to do with the mandate).
One commentator — Professor Kathleen Sands — does talk about law, but what she says unfortunately is incorrect. Here is a portion of Professor Sands’s comments:
Consider that “religion,” here, excludes even most Catholics. It discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.
I’ll confine my comments to the statements about the law, which are wrong in several respects. Current jurisprudence, assuming that is taken to include federal and state statutes and cases interpreting those statutes, unequivocally does provide exemptions from generally applicable laws, provided the claimant can show that the law substantially burdens its religious exercise and the state cannot show both that it has a compelling interest in enforcing the law and that it has selected the least restrictive means of enforcing the law. These statutes apply against the government, not against individual private employers. So for a claim of “religious liberty” to apply, the claim must be made against the government; if anybody has such a claim (including, of course, the specific people that Professor Sands mentions), current jurisprudence, in the form of certain statutory provisions, may well recognize it.
Professor Sands’s statement is also potentially misleading with respect to constitutional law proper. It is potentially misleading because if Professor Sands means that the Constitution does not permit such accommodations, she is wrong. If instead Professor Sands means that the Constitution does not require such accommodations, she is correct, but only on the condition that the law is truly neutral and of general application. That proposition is currently being litigated, and we will see what courts hold. If they hold that the law is not truly neutral and of general application, then, again, current jurisprudence says that accommodations for religious free exercise are required, provided that the claimant can satisfy the burden-shifting framework described above.
First Lawsuit to Challenge the (Revised) HHS Mandate
The first lawsuit (but surely not the last) challenging the putatively revised HHS contraceptive and abortifacient mandate has been filed right here in the U.S. District Court for the Eastern District of New York: Priests for Life v. Sebelius. The plaintiff is a private non-profit with about 50-60 employees. Whatever the content, and future, of the alteration that President Oabama mentioned last Friday, it is the mandate as originally crafted by the Obama Administration which has now become final. This action challenges that rule, alleging violations of the First Amendment and RFRA, though it also claims that there is no distinction between that rule and the proposed alteration.
I think the RFRA claim is a serious one. One of the interesting features of the case on the free exercise front is that the plaintiffs argue that the law is not a neutral one of general application because “[t]o date, HHS has granted over 1,000 individualized waiver requests from employers and to insurance plans,” and because by the very terms of the Affordable Care Act, certain insurance plans are grandfathered in. ¶¶ 17, 20. One to keep an eye on. (h/t Professor Friedman)
What Makes a Burden Substantial?
Under the terms of the Religious Freedom Restoration Act, courts engage in a kind of burden shifting framework. The burden is initially on the religious claimant to make out a prima facie case that whatever the government has done has imposed a “substantial burden” on its religious beliefs and/or practices. If it can do this, the burden shifts to the government to show that the substantial burden is justified by a compelling interest and that it has used the least restrictive means to achieve its compelling interest.
There has been some discussion about what it is that would make a “burden” qualify as “substantial” under RFRA. It seems to me that the gravity of a burden is frequently intimately connected with the centrality, or importance, of the belief that is felt to be burdened: the more central, or important, the religious tenet or view, the greater the obligation that the claimant will feel in adhering to it, and the more substantial will be the burden felt by the claimant in having to endure not adhering to it. Yet RFRA eliminated the inquiry into centrality. That decision was, I think, intended to prevent courts from making judgments about (a) how important a belief was, in order to determine (b) how severe or substantial the burden was. One reason for eliminating the centrality inquiry was an establishmentarian concern; another was a concern about competence.
The difficulty is that the standard continues to be a “substantial” burden. That cannot only mean a burden as to which a claimant sincerely objects on religious grounds. But how would one determine a burden’s substantiality without being permitted to inquire at all about a belief or practice’s centrality, or importance? I’m not even sure what the inquiry would look like. And that may be why, in the RFRA case law, one tends to see a great deal of deference to the claimant about what constitutes a “substantial” burden in the first place (and cases often get resolved under the compelling interest leg) — exactly because of the danger that an inquiry into the burden’s gravity, or substantiality, can easily bleed over into an inquiry about the belief or practice’s centrality, or importance, within the religious system. Sometimes one sees the statement that a substantial burden is one where the state puts “substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Rev. Bd. But that only seems to restate a kind of subjective test — how much pressure is “substantial pressure” will depend upon an inquiry about the nature of the coercion felt by the claimant in light of the religious belief’s importance to the claimant. Pressure only matters if the belief is religious (not generally a question) and about something important…or central. That is, a claimant is sensitive to pressure if government is squeezing a pressure point. But because centrality is no longer a cognizable concern, we are necessarily left with a healthy measure of deference to the claimant’s feelings about the quality of the burden.