Priscilla J. Smith (Yale University - Information Society Project) has posted Who Decides Conscience? RFRA's Catch 22 (Brooklyn Journal of Law and Policy, Forthcoming) on SSRN. Here is the abstract:
This essay examines application of the Religious Freedom Restoration Act (RFRA) to the contraception coverage rules under the Affordable Care Act, discussing a problem with the application of RFRA’s statutorily-mandated strict scrutiny test in this context that has not received attention. The U.S. Supreme Court will have to grapple with this problem, the RFRA Catch 22, as it considers the broad interpretations of “religious exercise” and “substantial burden” under RFRA promoted by the plaintiffs in Conestoga Wood Specialties Corp. v. Sebelius, No. 13-356, and Sebelius v. Hobby Lobby Stores, No. 13-354, challenges to the contraceptive coverage rules being heard by the Court this term. This broad interpretation was articulated clearly by counsel for the University of Notre Dame in a recent Seventh Circuit oral argument in which counsel stated that it is enough if Notre Dame believes something is a “substantial burden” under RFRA. As counsel argued, “[i]t is up to the believer to draw the line.”
I won’t hide my views of these broad claims. Better to confess them now. If the Court upholds the plaintiffs’ RFRA claims and the broad hands-off interpretation of “religious exercise” and “substantial burden” they necessitate, rather than finding a way to limit RFRA’s scope constitutionally to deny accommodations in these cases, RFRA will have no boundaries and the courts should prepare themselves for just the sorts of claims they disdained over twenty years ago in Employment Division v. Smith. . The only principled and constitutional way for them to do so will be in a manner that would treat all claims of interference with religious exercise equally, but the Court has already admitted that it can not apply the unbounded RFRA test fairly, equitably, or in a manner in accordance with the Establishment Clause in Smith, as dueling opinions of two panels of the Seventh Circuit would appear to confirm.
If I were confident that the courts would in fact review RFRA claims equitably, showing equal respect to all claims of religious exercise, I could allow myself to see a silver lining in a dark cloud, one that could be brought to bear in challenges to numerous federal laws under the aegis of federal RFRA. The broad interpretation of “religious exercise” and “substantial burden” being promoted in these cases could even be persuasive in challenges brought under state versions of RFRA that prohibit state restrictions that “substantially burden” “religious exercise.” Defined as broadly as the plaintiffs in these contraceptive coverage challenges advocate, RFRA’s protections could mean a new birth of freedom—freedom from draconian limits on reproductive choice, limits on sexual expression, limits on drug possession and drug use, requirements of service on juries, requirements that ceratin taxes be paid and census questions answered, and limitations on who and how many one may marry. A broad RFRA, read as the Court must read it to read it fairly and in accordance with the Establishment Clause, will mean a vastly different society, but that’s not necessarily a bad thing. Unfortunately, though, I am not confident of the courts’ willingness to apply a broad RFRA fairly. Instead, the more likely result is a broad and protective RFRA for some, those with religious exercise claims with which judges are most familiar, and a weak RFRA for the rest of us.