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.

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.

Ballard and “Sincere” Religious Beliefs

Marc DeGirolami kindly referred me to United States v. Ballard on the question of how, or whether, courts should analyze a person’s “sincere” religious beliefs. The defendants in Ballard had been convicted of fraud. The misrepresentations concerned the religious “I AM” movement, which the Ballards had founded. The court instructed the jury not to consider whether the defendants’ beliefs were true or false, but whether the defendants believed them to be true. If so, they were to be acquitted. The jury convicted them of a scheme to defraud. The Court of Appeals reversed, arguing that the question of truth or falsity also needed to be presented to the jury.

The Supreme Court reversed, and found the district court had properly excluded the question of truth from the jury. The majority opinion (written by Justice Douglas) affirmed that “[t]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.”  Yet the majority found that the defendants could be convicted of fraud for not really believe what they said, even if the content of that belief was outside judicial notice. Justice Jackson, in dissent, stated that he could “not see how we can separate what is believed from what is ‘believable’” and warned of the potential for religious persecution. He would have affirmed the reversal of the conviction.

Ballard is regularly cited (for example in the contraceptive mandate cases) for the proposition that courts cannot question the sincerity of religious beliefs. That is true, but the result in Ballard was upheld nonetheless. The Supreme Court determined that a court could rule on the acts of the plaintiffs (there, misrepresentations) without caring whether their belief was true. Cases like the Third Circuit Zubik case are doing something similar when they hold that “free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise.” There, the Court found that requiring religious institutions to fill out the accommodation form was not prohibited, because it disagreed that doing so interfered with the exercise of their religious beliefs, as the Court interpreted them.

So although the strict terms of the balance-shifting test may seem to support those seeking the accommodation, that is only a matter of drafting a statute that is better tailored to further government interests. The more basic question – who gets to decide “substantial burden” and on what grounds – still weighs against believers.

Some Comments About the District Court Decision Dismissing the Mandate Claim

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? 

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).

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.