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‘Scuse me, while I duck the sky…

By Beth Cate on July 18, 2014 in Civic Blog


Don Knebel wrote last week that the sky was not falling by virtue of the Supreme Court’s recent Hobby Lobby ruling. Not all at once, certainly, but some pieces have been raining down over the last couple of weeks that suggest we might want to keep our helmets handy.

Don concluded, and I agree, that “[t]he key to the [Hobby Lobby] decision” was that “the government itself recognizes a way to accommodate religious objections” while still ensuring that women have access to all FDA-approved forms of contraception without copays.

The government already let religious nonprofits complete a very brief form certifying their objection to providing contraception coverage, and send a copy to their carriers to alert them that their own legal obligations had kicked in to provide the coverage.

Per the Hobby Lobby majority, all the government had to do is let for-profits avail themselves of this same process, and – hallelujah! – it could ensure women have access to safe and effective contraception, while sparing corporate religious sensibilities.

To quote Justice Alito:

HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. (emphasis added)

Had HHS shown that extending the existing accommodation to for-profits was too costly or burdensome, the majority presumably would have rejected it as a viable alternative under the Religious Freedom Restoration Act (RFRA). After all, wrote Justice Kennedy in his concurring opinion:

[I]t is the Court’s understanding that an accommo­dation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the govern­ment’s [sic, objector’s] interest, and in fact the mechanism for doing so is already in place.

That’s why Don said the sky was not yet falling – because the Hobby Lobby decision ostensibly left room for the government to show that carving out alternatives for religious objectors is not feasible in a given case.

However, a mere seventy-two hours later, the Court acted in a way that raises concerns about how much burden the Court may be willing to impose on the government, and others, to accommodate even what appear to be negligible impositions on religious employers.   Three days after saying in Hobby Lobby that the government could simply let religious for-profits fill out the same certification form and provide the same carrier notice as religious nonprofits, the same five Justices, joined by Justice Breyer, effectively terminated that very same scheme. They gave Wheaton College an emergency injunction against having to comply with the accommodation process, after Wheaton complained that having to sign a government form and send a copy to its carrier made it “complicit” in providing contraception. While the injunction is temporary, it will take months if not years before the case gets back to the Supreme Court. In the meantime, presumably every other nonprofit and closely held for-profit can make the same argument, and get the same injunction, as Wheaton, and many have already filed in court to do so.

The Obama administration is reportedly scrambling to figure out a way to rework the process to make sure that female employees don’t suffer delays and obstructions in getting access to the contraception they are entitled to by law. But it took them two years to come up with the present accommodation process, and the Becket Fund for Religious Liberty is on deck to file fresh lawsuits against the next approach the administration comes up with. Mark Rienzi, senior counsel for the Becket Fund, recently was quoted as saying that “[a]nything that forces unwilling religious believers to be part of the system is not going to pass the test.”

The injunction in Wheaton, temporary or not, raises real concerns about how these Justices will assess future RFRA claims. The Court already has little stomach – and frankly, little real ability – to question whether someone’s asserted religious beliefs are sincere. After Hobby Lobby and Wheaton, it appears the majority also has abdicated any judicial role in deciding whether a law imposes a “substantial burden” on someone’s religious exercise.

That leaves two questions for courts: whether a challenged law serves a “compelling” government interest and whether the law is the “least restrictive alternative,” that is, the choice among available alternatives that is least burdensome on religion. Essentially this boils down to the Court judging whether Congress and the administration “did enough” to avoid conflicting with religious views and practice when writing and implementing federal policy.

Concerns about corporate personhood aside, if Hobby Lobby felt like a limited, the-sky-is-not-falling decision, it was for these reasons: (1) the majority saw an easy and presumably cheap way to avoid requiring an employer to pay, ultimately, for an article whose use contravenes its religious beliefs; and (2) the government did not prove otherwise.

The Wheaton order feels like the majority moved the needle. Why? By imposing, with no analysis whatever, unknown costs and burdens on the government (and perhaps on female employees too), when it was Wheaton’s duty to show it had an “indisputably clear” legal right to reject the government’s modest requirements for accommodating a religious objection to contraception. Wheaton’s “accomplice to contraception” theory does not approach an “indisputably clear” legal right under the standards the Court has used in the past to grant emergency injunctions.

The majority did not go so far as to remove any obligations from Wheaton – it still has to notify HHS of its religious objection, which will result in the same access to contraception Wheaton wants no part of (hopefully without significant added burden and delay for female employees). But it is unclear why the majority sees a distinction between those two approaches, in terms of religious burden, that is important enough to judicially rewrite the government’s administrative rules.

So is the sky falling now? No one really knows. The real-world impact of these decisions on contraception access and the federal budget is still unclear.   At bottom Hobby Lobby and the Wheaton order offer little guidance as to when the Supreme Court will judge a desired religious exemption to be too costly or burdensome on public policy and public administration. Congress, of course, can act legislatively to set that balance. Given the current polarization within Congress (evidenced again by this week’s Senate battle over a proposal to overturn Hobby Lobby), not to mention more battle lines being drawn over religious exemptions for federal contractors, clarification is more likely to come through the courts, case by case. Either way, we appear set for more conflict, anger and division – which both faith traditions and good government generally seek to avoid.

cate_beth_LBeth Cate is Associate Professor of Law and Public Affairs at Indiana University’s School of Public and Environmental Affairs. She joined the faculty full-time in Fall 2011; prior to that time, she taught courses as an adjunct while serving as Associate General Counsel to Indiana University, practicing in a variety of areas with emphases on intellectual property law and the law and ethics concerning research and the use of information technologies (which are now her areas of scholarly focus). Cate is a member of the Core Faculty at the Center for Civic Literacy.

Image courtesy of Ceridwen and retrieved from Wikimedia Commons.


  1. Don Knebel July 18, 2014 Reply


    I just read your response to my post on the Hobby Lobby decision. I think you and I are on the same page on this one — it is too early to tell how significant that decision will be. I will personally be amazed if the Court ulitimately holds that merely allowing employees to receive contraceptions is a burden on religious freedom, undoing the logic of the Hobby Lobby decision, but time will tell.

    Don Knebel

  2. Matt Impink July 18, 2014 Reply

    I am no lawyer, but I agree with Cate’s concerns about the legal precedent these cases will have for the arbitrary and self-interested application of undue burden on religious freedom. While Knebel’s point that RFRA places the burden on the government to find the least restrictive way to promote a compelling government interest is right, the Wheaton injunction makes me wonder if the court’s majority will allow for any compelling government interest to prevail under any circumstance.

    The bible says that all loans should be forgiven after seven years. Could I invoke RFRA to skirt payments on my student loans? I’m sure some struggling grad student is cooking up a fun lawsuit somewhere.

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