RFRA Jumps The Shark: The 8th Circuit Strikes Down the Contraception Accommodation (Part 2)

By Gregory M. Lipper

Thomas Jefferson famously said that “[i]t does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” Note what Jefferson did not say: “my neighbor is entitled to pick my pocket and break my leg, so long as the government can refill my pocket and pay for a cast on my leg.”

But the latter formulation seemed to influence last week’s Eighth Circuit ruling that the Religious Freedom Restoration Act (RFRA) bars the government from implementing an accommodation for employers with religious objections to including contraception in their health plans. In my previous post, I explained why the Eighth Circuit reduced RFRA’s substantial-burden requirement to a mere formality, potentially subjecting any and every federal law or regulation to strict scrutiny. Once things get to strict scrutiny, the Eighth Circuit goes even further, suggesting that a federal regulation cannot be sustained if the government could, in theory, provide the benefit or service itself.

The Eighth Circuit first applied this approach to the process by which employers obtain the religious exemption. Under the current rules, an objecting organization need only send a written notice to the government and identify its insurance provider or third-party administrator; the government then works with the insurance provider or third-party administrator to arrange for the employees to receive the contraceptive coverage to which they are entitled by law.

The Eighth Circuit, however, reasoned that there is a less-restrictive alternative to requiring this information, since the government could identify the necessary insurance providers and third-party administrators on its own—well, maybe: “Even if the [third-party administrators] are not known, the government has not shown at this stage of the proceedings that the inconvenience of identifying the [third-party administrators] likely would create an administrative problem of sufficient magnitude to make its entire scheme unworkable.” According to the Eighth Circuit, then, no disclosure requirement can be sustained unless the government can prove that it would be unable to discover the information after its own investigation.

Because the plaintiffs would likely object to even this alternative, the Eighth Circuit went further still, suggesting that RFRA can block virtually any regulation of the private sector on the ground that the government could always do the job itself. The plaintiffs argued that “the government could provide subsidies, reimbursements, tax credits, or tax deducations to employees, or that the government could pay for the distribution of contraceptives at community health centers, public clinics, and hospitals with income-based support”; the Eighth Circuit agreed that “the government has not shown that these alternatives are infeasible.”

Courts have not previously accepted the argument that “the government can always put the affected employees on public assistance,” and for good reason. Consider the following scenarios:

• The owner of a law firm believes, as a matter of faith, that women should never be the primary breadwinner in their household. As a result, he pays women lawyers half as much as their male counterparts. The owner argues that there is a less-restrictive alternative to enforcing the equal-pay laws: the government can offer a salary supplement to the affected women.

• The owner of a commercial shipping company refuses, due to his religious beliefs, to hire Catholic drivers. The owner argues that there is a less-restrictive alternative to enforcing the ban on religious discrimination: the government can hire the discriminatee to work at the Postal Service.

• The owner of a mining company objects on religious grounds to providing helmets to the company’s miners. The owner argues that there is a less-restrictive alternative to enforcing the federal worker-safety rules: OSHA can arrange to deliver helmets to the mine workers at their homes.

Yet under the Eighth Circuit’s approach, RFRA might prevent the application of federal employment law in each of those cases.

Not long ago, plaintiffs tried and failed to bring similar free exercise challenges to rules requiring Social Security payments, minimum wage and overtime compensation, and equal pay. In each case, the court allowed the government to enforce federal law and refused to allow exemptions that would “operate[ ] to impose the employer’s religious faith on the employees.”

In none of those cases did the courts say, “The employers should be exempt because the government can make up for the loss of compensation.” The already-accommodated contraception objectors have no basis to demand more here.

Greg Lipper is Senior Litigation Counsel at Americans United for Separation of Church and State. You can follow him on Twitter at @theglipper.