Religious Hokum in Supreme Court

WASHINGTON, USA - OCTOBER 23: Religious leaders from all faiths gather to issue a call to religious freedom and hopeful actio
WASHINGTON, USA - OCTOBER 23: Religious leaders from all faiths gather to issue a call to religious freedom and hopeful action at the Washington National Cathedral in Washington, USA on October 23, 2015. (Photo by Samuel Corum/Anadolu Agency/Getty Images)

Once again, the Supreme Court is poised to decide whether religious belief can override a legal duty to provide contraceptive coverage under the Affordable Care Act. Last year, in the Hobby Lobby case, the Court ruled 5-4 that owners of small, closely held for-profit companies such as the arts-and-crafts chain Hobby Lobby could refuse to provide health coverage for birth control drugs or devices on the ground that it would violate their religious belief that life begins at conception and that facilitating access to birth control devices would be facilitating abortions.

The Court held that the so-called contraceptive coverage mandate violated the Religious Freedom Restoration Act (RFRA) because it imposed a substantial burden on the owners: it forced them to choose between complying with the mandate and violating their religious beliefs, or paying fines for non-compliance. The way out of this religious dilemma, the Court said, and to ensure that employees receive contraceptive coverage, the company should simply notify the insurance provider that it would not pay for birth control, at which point the insurance carrier would pay for it directly.

But in the new case, Zubik v. Burwell, this seemingly reasonable and innocuous accommodation was turned upside down. Several Catholic non-profit organizations - schools, hospitals, clinics, charities - argue, as in the Hobby Lobby case, that complying with the contraceptive mandate, and the special accommodation for religious objectors, would also violate their religious beliefs. It should be noted that these Catholic nonprofits provide many services that are not inherently religious, and have a history of service that goes well beyond prayer and proselytizing.

These Catholic non-profit organizations - including several prestigious Universities - employ and enroll as students millions of adults, many of whom do not practice religion or share the Catholic Church's opposition to contraception. But there is a huge difference between the cases. In Hobby Lobby, the owners faced the painful choice between sacrificing their religious beliefs or being fined for noncompliance. In Zubik, there is no comparable choice. The government devised a regulatory accommodation for non-profits specifically to allow them to opt out completely from the contraceptive mandate. All they have to do, as the Supreme Court suggested in Hobby Lobby, is simply to notify the insurance carrier of their religious objection. Such notice would extinguish the religious organization's duty to pay for any coverage that includes contraception. The group health insurer would then offer separate coverage for contraception services to any women who want them, and inform beneficiaries that the objecting employer has no role in facilitating that coverage.

But this accommodation, according to the religious non-profits who are suing in the Supreme Court, is really not an accommodation at all. They insist that the notice they submit when requesting the accommodation - a letter or two-page form - is an indirect triggering device that activates substitute coverage to their employees and students. They claim that the government is thereby "hijacking" their health plans and using them as "conduits" for providing contraceptive coverage. They claim, in effect, that they will become complicit in conduct that violates their religious beliefs.

Indeed, whereas in Hobby Lobby the substantial burden on religious faith was either to violate one's religious beliefs or be penalized for refusing to do so, the so-called substantial burden in the Zubik case, so the plaintiffs claim, is that giving them a contraception exemption coerces them into another avenue that violates their religion. Such claim, the Court of Appeals for the District of Columbia observed in throwing out the lawsuit - one of seven courts of appeal to reject the claim -- is extraordinary, unprecedented, and potentially far reaching. It is analogous, the Court noted, to a religious conscientious objector to a military draft claiming that the act of identifying himself as such on his Selective Service card constitutes a substantial burden on his religious beliefs because such identification would then trigger the draft of another selective service registrant in his place and thereby make the objector complicit in facilitating war.

There is another unusual twist to this case that makes the plaintiff's lawsuit even more farfetched. When the Supreme Court took the case, it sought to maintain the status quo; the Court enjoined the government from enforcing the contraceptive mandate while the case was pending. However, the Court ordered the Catholic non-profit plaintiffs to inform the Department of Health and Human Services of their statuses as non-profit religious organizations that have religious objections to providing coverage for contraceptive services.

The Court stated that the government could rely on this notice to facilitate the provision of contraceptive coverage to the plaintiffs' employees and students. But this order by the Supreme Court raises an interesting question: Does the Supreme Court's order requiring the plaintiffs' notice constitute a substantial burden on the plaintiffs' religious belief, as well? The Court's order indirectly facilitates contraceptive coverage; the facilitation was triggered by the plaintiffs' notice. Hasn't the Supreme Court coerced the plaintiffs to be complicit in the accommodation process?

There is no question that some government regulations and policies may impose substantial burdens on the free exercise of religion. And it is often extremely difficult to balance in a meaningful way the government's interests against the interests of the believer. Courts do not as a general rule challenge the sincerity of a person's assertion of a religious belief. Nor is there any contention that the claim of the non-profits that they have religious objections to paying for contraception is not totally sincere.

However, it is a far different matter to claim that a requirement - any requirement - necessarily imposes a substantial burden on one's religious belief. The fact that one believes that doing a certain act - here, making a fairly simple and straightforward notification that one does not wish to participate in a program -- constitutes a substantial burden on one's religion does not make it so. It's not a subjective test. The critical question is whether it is reasonable for a person to believe that such a de minimis requirement truly constitutes a substantial burden.

There is a narrative of relief from religious oppression that occasionally gets recalled; witches were burned; Jehovah's Witnesses were brutalized; Jews were vilified. We are a nation that prides itself as a place where people have the liberty to practice their faith without the government imposing unfair burdens on them. But religious freedom is not a free pass; there is no doctrine of religious exceptionalism. Congress, when it enacted RFRA ,certainly did not intend that litigants claiming religious oppression would concoct spurious arguments masquerading as substantial burdens on their ability to practice their faith. It would be a perversion of religious liberty if the Supreme Court endorsed a claim that a religious exemption becomes a religious burden simply because the believer says it is. That goes too much too far.