Originally posted on the Gender & Sexuality Law Blog on July 3rd, 2014.
The Supreme Court is supposed to be the final word on our legal questions, but apparently it reserves the right to change its mind at a moment’s notice. When the Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores on Monday June 30th, holding that the Religious Freedom Restoration Act required the government to allow for-profit businesses with religious objections to contraceptives to opt out of complying with the Affordable Care Act’s contraceptive coverage requirement, the majority opinion stressed at length the idea that the law was not narrowly tailored because the government could have offered for-profit businesses the same accommodation available to non-profit religiously-affiliated organizations. Under the regulations implementing the ACA, religiously-affiliated non-profit organizations are allowed to certify that they object to providing insurance coverage for contraception. They send that form to the government and to their insurance company, at which point their insurance company is required to pay for the coverage out of its own funds. The majority opinion relied on the existence of this program as proof that the government had a better option available to achieve its goal of universal contraceptive coverage. As Justice Alito wrote, that accommodation “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves [the government’s] stated interests equally well.”
One might have thought this meant that the accommodation was, in fact, a legally acceptable system that would withstand a challenge under RFRA (given the lack of enforcement or monitoring in the regulation, it’s far from a morally acceptable system anyway). But only three days later the Supreme Court has issued an order temporarily enjoining the government from enforcing the requirement that a non-profit religiously-affiliated organization certify that it objects to coverage. There are almost 80 cases pending in the lower federal courts brought by non-profit organizations that claim that even signing the certification form is a substantial burden on their free exercise, because they believe that signing the form “triggers” the insurance company to provide the contraceptives and thereby makes them – the nonprofit organization – complicit. And not just complicit, but so complicit it violates their religious freedom. Let me just be clear again, we’re talking about signing a form, the entire purpose of which is to excuse the organization from being required to pay for contraceptive coverage. The majority held that these organizations need not sign the form nor send the required notifications. Instead the majority arbitrarily rewrote the applicable regulations, making it the government’s responsibility to make sure that women receive seamless contraceptive coverage once they have received some kind of undefined written notice that an organization objects. (One presumes that a scrawled note on a cocktail napkin will suffice).
So why should we care? After all, what does it matter whether the organizations have to sign a form or send some other kind of written notice? It matters for a few reasons. First, it matters for the actual women employed by these religiously-affiliated organizations, which includes Catholic hospitals, religiously-affiliated universities, and other large complicated institutions that employ thousands and thousands of women. The accommodation already suffered from a lack of monitoring and enforcement mechanism, and now objecting institutions need not even sign a standard form, and the government is supposed to somehow ensure that all these women don’t fall through the cracks, if it chooses to do so – the order doesn’t require it to do so, and neither do the current regulations. We can hope for the best, but should be prepared for the worst on that front.
The dangers of this order go far beyond those women though. Misguided as the opinion in Hobby Lobby was – inaccurate and poorly-reasoned though it might have been – at least the objectors were arguably requesting relief from an actual legal requirement. The objectors in these non-profit cases are already being given an accommodation. The idea that signing a form that allows one to get an exemption can itself be a substantial burden on one’s free exercise boggles the mind. It makes a mockery of the substantial burden standard – forget the word “substantial,” even of the word “burden.” It effectively deprives the test under RFRA of any real meaning, and hollows out the court’s evaluative role in adjudicating these claims. If signing a form that gives you access to an exemption is a substantial burden, then anything is a substantial burden, and there’s absolutely no check on what religious objectors can refuse to do.
The only silver lining is that these cases – and this result – make clear what we have long suspected: religious objectors to the contraceptive coverage requirement (and other equality measures) aren’t looking for a reasonable compromise. They are looking to reject secular governmental authority altogether in favor of obedience to a religious law, regardless of the fact that the vast majority of the actual individuals affected do not share their religion or their beliefs. It’s the tyranny of the minority, and it looks like it may be here to stay.
 Burwell v. Hobby Lobby Stores, slip. op. at 34 (available at http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf)
 I say arguably because there was a strong argument in the case, first proposed by Marty Lederman but not accepted by the majority, that in fact there was no legal requirement to provide insurance coverage for contraception – rather there was a choice to provide comprehensive coverage or to provide no coverage and pay a tax to subsidize insurance on public exchanges instead. See e.g. Marty Lederman, http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html.
Kara Loewentheil is a Research Fellow at Columbia Law School and the Director of the Public Rights / Private Conscience Project in the Columbia Center for Gender and Sexuality Law.