Associate Justice Antonia Clarentia Ligouri: A(nother) response to Cathy Kaveny

In this post -- continuing her discussion of the HHS mandate and the RFRA and constitutional challenges to it -- Cathy reminds us of some important questions that arise in the deployment of First Amendment doctrine and in the enforcement of RFRA, namely, that (a) courts have to confirm that the challenged government action does place a "substantial" burden on religious practice (this does not, in the caselaw, mean "huge" or "crushing", but I agree with Cathy that it would exclude trifles and trivia) and that (b) courts have to decide whether the government interest purportedly justifying that burden is "compelling" (or some other evaluative word).  And, as she discusses, it is an interesting and important the extent to which courts should defer to the claimant (on (a)) and the government (on (b)).

In practice -- in order to avoid, probably, the risk of conflating judges' views of a policy's merits with the "compellingness" (for doctrinal purposes) of the government's interest -- what courts often (and, I think, reasonably) do is to assume for the sake of argument that the interest the government holds out as "compelling" really *is* compelling (unless it's obviously illegitimate or impermissible), and then inquire about the "fit" -- the "tailoring" -- between the burdensome regulation and the asserted state interest.  And, when laws are invalidated via the application of this method, it is very rarely because the interest is identified by the court as not-compelling.  It is, instead, because the "fit" is poor -- it's "underinclusive", say.  This poor fit serves as a signal that (i) the *government* doesn't *really* think the interest is all that important (because it has pursued it so half-heartedly, perhaps in a way that fails to spread the burdens of the policy fairly), or (ii) that the asserted interest isn't *really* the government's aim (i.e., the bad fit exposes a bad motive).

I think that those of us who think the mandate RFRA think so not so much because we think a court will and should hold that "increasing access to contraception is not, in fact, a compelling public interest, because contraception is immoral", but instead think that "the burden on religious practice is unnecessary, because the government's interest could have been achieved by less burdensome means and because the government's willingness to exempt so many employers from the mandate calls into question the claim that the *government* believes the interest is really compelling."