In rejecting Hobby Lobby’s request for an emergency injunction, Supreme Court Justice Sonia Sotomayor stated that the Supreme Court may issue an injunction only when “necessary or appropriate in aid of [its] jurisdiction” and ”the legal rights at issue are indisputably clear.” Ultimately, she found that the rights at issue in Hobby Lobby’s contraception mandate lawsuit are not “indisputably clear” and sent Hobby Lobby packing.
Conservatives critics, needless to say, have balked.
Ed Whelan of National Review Online, for example, claims that Sotomayor’s “order puts the Greens in the appalling position of being forced to choose between violating their religious beliefs by providing insurance coverage for abortion-inducing drugs and subjecting their businesses to potentially crippling fines.” Whelan then states, rather flippantly, that the lower courts “messed up” what he deems “elementary points.”
It is indisputably clear that the Greens, as individuals, have rights under the federal Religious Freedom Restoration Act. It is indisputably clear under the Court’s precedents (see, e.g., Thomas v. Review Board (1981)) that, in determining whether a person is engaged in an “exercise of religion” (one element of the RFRA inquiry), judges should limit themselves to determining whether the person is acting from an honest religious conviction. It is indisputably clear that a monetary fine imposed on an exercise of religion “substantially burdens” that exercise of religion. (My essay here develops these and other points under RFRA.) The courts below that ruled against the Greens messed up these elementary points.
The points Whelan dismisses as elementary are, as one might imagine, anything but. First, he claims that it is “indisputably clear” that the Greens have rights under the Religious Freedom Restoration Act. Well, yes. That’s true. The Greens do have such rights. Whelan goes on to claim that Court precedent (Thomas v. Review Board) dictates that courts should limit themselves to determining whether the person claiming rights under RFRA is acting from an honest religious conviction. That’s true, too.
So, let’s assume (as a court must) that the Greens are acting from an honest religious conviction. The question becomes: So what? Asking employers to ensure that coverage is provided for all health needs in a plan earned by their employees might, after decisions made by a patient and doctor, end up subsidizing an activity condemned by the employer’s religion is not a substantial burden on religion.
Many birth control benefit detractors attempt to read the term “substantial” out of the phrase “substantial burden,” and seem to suggest that any burden on religion at all is a “substantial burden,” and therefore unconstitutional. But the Supreme Court indicated in Wisconsin v. Yoder (a case Whelan references in a separate essay cited in his NRO article) that is not a legally-sound proposition:
Although a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.
Others (Whelan included) separate the burdensome activity (“deliberately providing insurance coverage for prescription drugs or devices inconsistent with their faith, in particular abortion-causing drugs and devices” [Hobby Lobby Complaint, ¶¶ 52-53]) from the burden of the sanction (hefty statutorily-imposed fines) and focus on the latter to the exclusion of the former. But case law (again, Wisconsin v. Yoder) suggests that the “substantial” inquiry relates to the law requiring activity charged as violative of religion, and not only to the punishment or sanction for failing to follow the law.
Thomas v. Review Board tells us that a court must assume that Hobby Lobby is acting from an honest religious conviction, but that doesn’t mean that a court must automatically accept Hobby Lobby’s word as to the substantiality of the burden. As the district court noted in its order denying Hobby Lobby’s request for a preliminary injunction:
[E]ven assuming, as appears to be the case with plaintiffs, that they object as a matter of religious faith to any act supporting or facilitating abortion, no matter how indirect, that does not end the issue. RFRA’s provisions do not apply to any burden on religious exercise, but rather to a “substantial” burden on that exercise.
Notably, the “substantialness” of the burden has changed in the last year alone. In February 2012, the Catholic Health Association, for example, sanctioned the original compromise that allows employers to pass the contraception coverage buck to insurance companies. Months later in June, the CHA changed its mind.
One wonders, then, how much of a burden the birth control benefit is. Not much, according to the Tenth Circuit:
[T]he particular 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 [the corporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.”
We agree. As the district court noted, other cases enforcing RFRA have done so to protect a plaintiff’s own participation in (or abstention from) a specific practice required (or condemned) by his religion. We do not think there is a substantial likelihood that this court will extend the reach of RFRA to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship.
Even if the Supreme Court were to ultimately take an opposing view, at a minimum, it is far from “indisputably clear” that Whelan’s view (and the views of the myriad plaintiffs to these lawsuits) is the correct one. And it is this lack of clarity that resulted in Sotomayor rejecting Hobby Lobby’s “Hail Mary” request for a preliminary injunction.