RFRA, the Pitchfork, and the Crozier

[MOJ reader Christian E. O'Connell wrote and sent in the following and -- with his permission -- I am posting it here]:

RFRA, the Pitchfork and the Crozier

Christian E. O’Connell [*]

 

Will no one rid Professor Marci Hamilton of these turbulent priests?

The Cardozo law professor’s resentment at the meddlesome shepherds of the Catholic Church is palpable in her new essay (“The Circle Starts to Close”) at Justia’s Verdict.  The U.S. bishops pressed, albeit unsuccessfully, for an abortion-related exception to the Religious Freedom Restoration Act (“RFRA”) at the time of its enactment; they’re currently “sinking who-knows-how-much-money” into RFRA litigation to avoid being compelled to provide what Hamilton terms “cost-free contraception coverage.”  Perhaps most insolent of all in Hamilton’s tally of grievances, the bishops “lobbied like crazy” alongside evangelical Protestants and others for informed consent laws requiring physicians to provide certain information to women seeking elective abortions.

Now that an ostensibly religious organization called the Satanic Temple has commenced a campaign to avail its women members of a RFRA exemption to state informed consent laws, Hamilton is gratified by the prospect of seeing the Catholic episcopate hoist with its own petard.  By Hamilton’s reckoning, the road to the Satanic Temple’s victory is paved with the intentions of those who, like the bishops, welcomed the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby.

Although the Satanic Temple hasn’t yet brought any RFRA lawsuit, Hamilton likes the organization’s odds.  As she summarizes:

The RFRA doctrine raises four [sic] issues: (1) is the entity protected by RFRA; (2) is the believer sincere; (3) does the law impose a substantial burden on the believer; and (4) can the government prove that the law serves a compelling interest (5) in the least restrictive means?

Applying these factors to the claim suggested by the Satanic Temple, Hamilton concludes that the claim should prevail.  Yet some of her responses are debatable at the very least, and there are other fundamental considerations that Hamilton neglects entirely.

Hamilton is obviously correct that the Satanic Temple is an entity to which RFRA’s protections apply in principle.  All the same, RFRA cannot constitutionally be applied in respect of state laws such as the informed consent laws to which the Satanic Temple objects.  Hamilton certainly knows this, having acted as counsel in the Supreme Court case that confirmed it (City of Boerne v. Flores, which also pitted her against the Catholic Church in the person of the Archbishop of San Antonio).  A number of states have enacted their own legislative analogues to RFRA, but it’s clear from Hamilton’s essay that she’s referring to the federal statute.  In her apparent haste to tout the Satanic Temple’s chances in court, Hamilton never explains how this threshold obstacle is to be overcome.

To receive RFRA protection, beliefs must be religious, not simply amounting to a philosophy or way of life.  Hamilton tacitly assumes that the pertinent beliefs of the Satanic Temple are religious and doesn’t even mention this criterion, but a court wouldn’t make the same assumption; this is the stuff of judicial fact-finding.  Although the bar for this analysis can fairly be described as a low one, it’s not nonexistent.  Indicia that courts have considered in determining whether beliefs are religious include preoccupation with ultimate ideas, the metaphysical nature of the beliefs, a moral or ethical system, the comprehensiveness of the belief system, and the presence of various external signs (the “accoutrements of religion”) suggestive of religiosity.  To be sure, these indicia have been construed broadly, and no particular factor is conclusive.  Yet it’s by no means a foregone conclusion that the Satanic Temple’s beliefs about informed consent to abortion qualify as religious for RFRA purposes.

Hamilton’s declaration that the Satanic Temple’s beliefs—religious or not—are “sincerely held” is less problematic than the sideswipe she can’t resist taking at Hobby Lobby’s owners:

There were and are many reasons to question the sincerity of the Greens, who covered contraception before the Affordable Care Act mandated it and whose company is heavily invested in the companies that make the contraceptives to which they object, but the federal government failed in Hobby Lobby to pursue this legitimate tack, likely for political reasons.

To clarify, Hobby Lobby’s self-funded health plan has long covered contraception in general, and continues to do so.  That the company immediately removed Plan B and Ella from its plan formulary upon the Greens’ discovery of the drugs’ inclusion, however, can reasonably be taken to evince sincerity.  The district court, at least, found the oversight to be an honest mistake, but Hamilton is evidently a tougher crowd.

Likewise, one suspects that if the 401(k)  plan investments to which Hamilton alludes (and which are discussed in depth here and here) had been proffered by the government to refute the sincerity of the Greens’ beliefs, the argument would rightly have been greeted with even greater judicial skepticism.  For even if we assumed that the Greens had specific knowledge of the plan’s indirect portfolio holdings, that would—to borrow from the Supreme Court’s holding in Thomas v. Review Board—“reveal no more than that [the Greens] found [the portfolio investments] sufficiently insulated” from complicity in the death of human embryos.

We must suppose Hamilton similarly believes that “there were and are many reasons to question the sincerity of” the plaintiff in Thomas, who unsuccessfully requested a layoff shortly after discovering that his new job involved making tank turrets, and who remained willing to take a job (had one been available) making the rolled steel from which the turrets were fabricated.  If, as Hamilton surmises, the government failed to challenge the Greens’ sincerity “likely for political reasons,” those reasons might reasonably have included aversion to the political embarrassment of being heard to advance such a dubious argument.

Reaching the “substantial burden” element of RFRA, Hamilton writes:

Do the coercive informed consent abortion laws substantially burden [the Satanic Temple’s] beliefs? Check, after Hobby Lobby.  Before Hobby Lobby, this would have been harder for the Satanic Temple, because “substantial” meant substantial, and it had never meant that a believer could point to the practices of others to prove the substantial burden on them.  Now, “substantial” can also mean attenuated.  Hobby Lobby’s “substantial burden” was that some dollars from its billions in annual revenues would pay for some types of contraception that their employees might use.

In reality, as the Supreme Court indicated, Hobby Lobby’s burden was the Hobson’s choice between (i) incurring as much as $475 million annually in tax penalties and (ii) violating what the Greens perceived as an immediate and unambiguous religious duty to refrain from complying fully with the challenged regulation.  It was neither insubstantial nor attenuated.  And what of the plaintiff in Thomas, who similarly pointed to “the practices of others” (i.e., those who would actually wage war with the armaments produced in his employer’s factory) in establishing the burden on his religious exercise?   If, hypothetically, the “substantial burden” standard is satisfied in the case of the Satanic Temple, it’s hard to credit leverage specifically gained from Hobby Lobby.

Hamilton does not greatly elaborate her conclusion that the Satanic Temple’s beliefs are substantially burdened by state informed consent laws.  Consider, though, this summa of those beliefs set forth in a form letter to physicians prepared by the organization:

I make any decision regarding my health based on the best scientific understanding of the world, even if the science does not comport with the religious or political beliefs of others. … I regard any information required by state statute to be communicated or offered to me as a precondition for an abortion (separate and apart from any other medical procedure) to be based on politics and not science … [and] I do not regard [such information] to be scientifically true or accurate or even relevant to my medical decisions.

Any “substantial burden” argument grounded in this credo may itself be substantially burdened by a self-defeating principle.  The beliefs presuppose, after all, that the Satanic Temple adherent will not treat the information provided under the objected-to laws as relevant.  The believer already “knows” (by diabolical revelation?) such information to be political and inaccurate; her religious exercise apparently consists in dogmatically disregarding it in making a decision and granting consent.  State informed consent laws seem inherently incapable of restraining that exercise.  Accordingly, I think it will be problematic to demonstrate that such laws substantially burden the believer’s ability to “make any decision regarding [her] health” on this basis.  Had the scribes of the Satanic Temple taken up their quills with the specific intention of drafting a burden-resistant formulation of belief, it’s not clear that they could have done much better.

Nonetheless, Hamilton predicts that “[t]he Satanic Temple wins, and who loses?  All of the evangelicals and Catholic bishops who lobbied like crazy to put such coercive and insulting conditions on women’s choices over their own bodies in the first place.”  Time will tell.  Hamilton’s cursory legal analysis draws some incorrect lessons from Hobby Lobby, however, and one can’t elude the sense that there’s a good dose of wish-fulfillment fantasy at work in her sanguine assessment of the Satanic Temple’s prospects of success.

Ultimately, Hamilton thinks that the “problem” the Catholic Church and evangelical Protestants face after Hobby Lobby “is that RFRA does not and cannot (consistent with the Constitution) provide its extreme standard solely to some religious believers and not others.”  Defenders of religious liberty, however, generally understand that universality to be a feature, not a bug, of the legislation—even if the Satanic Temple has misunderstood the nature of the protections conferred by RFRA in this instance.  Giving the Devil benefit of law is not a quandary for the Catholic bishops.  If Professor Hamilton does not know that, then one suspects she does not yet— after all these years—know them.

---

[*] The author is a lawyer in Washington, D.C.