A Reply to the Author of Cato’s Brief in the Little Sisters Contraception Case

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By Gregory M. Lipper

Josh Blackman has replied to my post criticizing the Cato Institute’s amicus brief (which Josh coauthored) in support of the cert petition in the Little Sisters contraception case. My original post made two arguments: (1) if you take away the nonprofit accommodation, Hobby Lobby no longer supplies a rule of decision, because the presence of the nonprofit accommodation was what led the Court to conclude that RFRA barred the coverage requirement, and (2) if you prevent regulatory agencies from offering reasonable, tailored accommodations to their regulations, the result is bad for religious liberty.

Two brief comment on Josh’s reply.

First, on the question of agency authority to issue religious accommodations, Josh incorrectly suggests that I miss a subtelty in his argument. Josh/Cato say that the Department of Health and Human Services (HHS) has authority to issue religious accommodations, but that it may not decide “which organizations were worthy of the exemption, and which would be burdened by the accommodation.” I address this argument in my original post: the Cato brief assumes that religious accommodations are all-or-nothing, but that is not how the Religious Freedom Restoration Act (RFRA) works. RFRA details when accommodations are available and when they are not (and the Establishment Clause limits accommodations that unduly harm third parties). So an agency (HHS, or otherwise) cannot, as a practical matter, offer accommodations without determining who is eligible for that accommodation and who is not. As I said in my original post, Cato “would force agencies to choose between a bludgeon and no tools at all, even when the agency would need a scalpel to craft religious accommodations consistent with RFRA.”

Consider the following scenario:

Greg, at Starbucks: “I’d like a tall coffee”

Barrista: “I’m sorry, you’re free to drink coffee, but only if you drink all of the coffee in our store”

Greg: “But if I drink that much coffee I’ll die.”

Barrista: “Unfortunately, you’re not allowed to exercise any judgment about how much coffee you can safely drink.”

Josh/Cato would say that in this scenario, I’m still free to drink coffee, so long as I don’t exercise any judgment about how much to drink. But as a practical matter, I’m not free to drink coffee—in order to actually drink coffee, I need to drink enough to nurse my caffeine addiction but not so much that I go into cardiac arrest.

The same goes for religious accommodations: if an agency must issue an accommodation to everyone who wants one (or to everyone who identifies as religious), then the agency isn’t able to properly apply RFRA—which provides for accommodations when the regulation imposes a substantial burden and the regulation is not the least restrictive means of fulfilling a compelling governmental interest and the accommodation wouldn’t inflict undue harm on a third party (say, the employees of the entities refusing to cover contraception). The day-old “Insincere Church of Political and Ideological Opposition to Universal Healthcare” probably isn’t entitled to the same religious exemption as the Catholic Church, and HHS needs the flexibility to make those calls. And if agencies lack the practical ability to offer and calibrate religious accommodations to their regulations, the result is a gigantic loss for religious liberty.

Second, Josh’s post seems to retreat from his brief’s argument that Hobby Lobby “supplies the rule of decision” and necessarily requires an exemption for Little Sisters. In his post, he begins a merits debate, and he says that my post “rehashes the debate between the majority and dissent in Wheaton College over what exactly did Hobby Lobby hold.”

No. In the Wheaton College order, the dissent took the position that Hobby Lobby necessarily leads to the conclusion that the nonprofit accommodation satisfies RFRA’s requirements. I think that’s the best reading of Hobby Lobby, and certainly of Justice Kennedy’s position; all seven federal appeals courts to consider the question agree with me.

But the Cato brief isn’t saying that the nonprofit accommodation violates RFRA. Rather, the Cato brief is saying that the Supreme Court can dodge that question entirely, because Hobby Lobby supplies “the rule of decision”—without any further analysis—even if the nonprofit accommodation is taken out of the picture. And that is clearly wrong: the Court in Hobby Lobby based its less-restrictive-alternative holding on the presence of the nonprofit accommodation. Don’t take my word for it; here’s what the Supreme Court said (emphasis added):

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, 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. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

Whether or not you think that the nonprofit accommodation itself complies with RFRA, that accommodation’s existence was a necessary premise of the decision in Hobby Lobby. Take away that premise, and we’re back to the question of what RFRA requires or doesn’t require. Which means that Cato’s dodge isn’t so artful after all.

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

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