On the heels of the deeply troubling and controversial Hobby Lobby decision, the Supreme Court on July 3rd issued another disturbing order in a challenge to the Affordable Care Act (“ACA”) contraception mandate. This order, coupled with the Hobby Lobby decision, indicates that the Court may be effectively striking a central requirement from an important religious liberty law – the federal Religious Freedom Restoration Act (“RFRA”). That requirement is that someone claiming protection under the law must show that his or her religious practice was substantially burdened.
In Wheaton College v. Burwell, a religiously-affiliated college that opposes certain forms of birth control is challenging the process by which they indicate to the government that they qualify for an exception to the contraception mandate. This exception allows religious, non-profit employers such as the college, to opt out of providing employee health insurance that covers contraception. But, ironically, the college claims that applying for this exception (which involves completing a two-page government form) violates its rights under RFRA, which was the same law that for-profit corporations successfully used to challenge the mandate in the Hobby Lobby case. In the July 3 order, the Court employed a rarely used legal mechanism to temporarily block implementation of the exception while the case is still under appeal.
RFRA requires the federal government to demonstrate the most stringent constitutional standard when it imposes a “substantial” burden on a person’s religious exercise. As ADL pointed out in its amicus (friend-of-the-court) brief to the Supreme Court in the Hobby Lobby case, RFRA’s use of the term substantial is not an accident, but was included to make clear that the statute’s strong protections could not be triggered by incidental or minor burdens on religion. In fact, the Senate Report on RFRA states that Congress added the term so that the law “would not require [a compelling government interest] for every government action that may have some incidental effect on religious institutions.”
Based on this report and other precedent, the brief ADL joined in Hobby Lobby argued that the secular, for-profit corporate plaintiffs were not eligible for RFRA’s protections because, among other reasons, any burden on their religious exercise was incidental and not substantial. Unfortunately, the Court did not agree with ADL’s argument. It ruled that application of the contraception mandate to the corporations did substantially burden their religious exercise and violated RFRA.
The Court’s subsequent action in the Wheaton College case rendered this misguided conclusion even more ominous.