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What Religious Freedom Means. (It's Complicated.)

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Supreme Court looks like it's going to split 4-4 on whether religious organizations are entitled to have even their health insurance providers exempted from providing contraceptive care under the Affordable Care Act. That much was clear from the justices comments at oral arguments on Wednesday.

That will leave unresolved the vexing legal questions at the heart of a challenge to Obamacare brought by the Little Sisters of the Poor: What is religious freedom and what does it mean for a law to impose an unacceptable burden on religious practice?

Specifically, is it a substantial burden on a religious employer to require its insurance carriers to provide contraception, even if the employer doesn’t have to pay a penny for it? The phrase “substantial burden” was originally a constitutional test, and it’s now a statutory one under the federal Religious Freedom Restoration Act and its many state imitators – so it’s a phrase worth thinking about seriously.

It wasn’t always clear that the "substantial burden" test would be the central issue in the case now before the court, Little Sisters of the Poor v. Burwell. At one time, it seemed to me that the litigation could turn on whether the Little Sisters and other non-church religious organizations could be required to file a form asking for an exemption from the ACA.

But at Wednesday's oral argument, Paul Clement, the former solicitor general representing the religious petitioners, made it clear that his clients weren’t objecting to a filing requirement.

Instead, Clement said that the essence of his case was that the religious organizations are substantially burdened by the way the law creates a contraceptive exemption for them, which is different from the way the law exempts churches. Churches are totally exempted from providing contraceptive care to their employees. Other religious organizations fall under a subtly different legal regime. Once they tell the government they don’t want to provide contraceptive care, the government tells their insurance carriers to provide the care to the employees at no cost to the religious organization.

To the Little Sisters, this mechanism renders them complicit in the sinful provision of contraception. Their position is that it’s their employee insurance plan, chosen by them and administered through the same caregivers as their regular plan. To them, their plan is being "hijacked" by the government to provide contraceptive care. Chief Justice John Roberts picked on the hijacking metaphor and seemed to find it persuasive.

The reason this position is so significant is that the government’s view is 180 degrees opposed. Solicitor general Donald Verrilli argued that the reason for the scheme is precisely so that the same health care plan and same doctors who give employees all their other care will also provide contraceptive care. Prompted by Justice Stephen Breyer, Verrilli said that "seamless" care is necessary – indeed, a compelling state interest -- because lots of women who need contraception might not seek it if they have to buy a separate insurance plan to cover it.

Under the religious freedom law, the court must first determine if the religious organizations are under a substantial burden. If they are, then the government must have compelling interest, and its plan must be narrowly tailored to meet that interest.

The government would be happy to win its case at either stage. But it has a problem. The court ruled in the 2014 Hobby Lobby case that Obamacare imposed a substantial burden on companies that wanted to deny contraceptive coverage to their employees. Under that precedent, the government wouldn’t be able to show that the exemption for the Little Sisters was narrowly tailored, because the ACA provided an easier exemption for churches, and so could logically meet the religious organizations’ needs that way.

For that reason, the liberal justices seemed focused on arguing that the religious organizations aren’t suffering a substantial burden, since they don’t have to pay for the contraceptive care.

This position requires a very fine distinction. Verrilli conceded that the government wasn’t disputing the sincerity of the Little Sisters’ claim that they’re complicit in sin under the exemption scheme. Rather, he maintained that despite their beliefs, the religious organizations aren’t substantially burdened under the religious freedom law.

The basis for saying so lies in two cases, Bowen v. Roy (1986) and Lyng v. Northwest Indian Cemetery Protective Association (1988). In both, the Supreme Court held that religious petitioners weren’t substantially burdened by government programs despite sincerely thinking that they were.

The Bowen case involved a girl named Little Bird of the Snow whose parents didn’t want to provide a Social Security number for her in order to obtain welfare benefits. The court said that the number was assigned by the government, and didn’t burden the family’s religious exercise.

In the Lyng case, the government built a logging road through federal land that was religiously significant to Native Americans. The justices held that the Indians’ free exercise of religion wasn’t burdened. The punchline was that the free exercise clause of the First Amendment  "is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government."

If the Bowen and Lyng cases were to be applied according to their own logic, the Little Sisters probably wouldn’t be held to be substantially burdened. The government, after all, is mandating that the healthcare insurers provide and pay for contraceptive care. The religious organizations aren’t playing any role except refusing to pay themselves.

But nearly 30 years after those cases, our concern for the subjective experience of religious dissenters is much more sensitive than it once was. Today, it would be understandably difficult for a court to say that someone who sincerely feels religiously burdened isn’t burdened for purposes of the law.

It might be doctrinally simpler to go back to those precedents. Otherwise, almost anyone who feels religiously burdened by anything can raise a claim that the courts must adjudicate.

But in the real world, it seems unlikely that the substantial burden doctrine can be maintained in its traditional form. That means cases will have to be resolved at the second step, when the court asks if the government has a compelling interest and has narrowly tailored the law to serve it. A court controlled by five liberals would probably decide the Little Sisters’ case that way, repudiating Hobby Lobby in the bargain. And that, I think, would be the right outcome for our current legal and political moment.

  1. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net