Zubik v. Burwell, Part 1: Why Paperwork Does Not Burden Religious Exercise

By Gregory M. Lipper

(Read Part 2, Part 3, Part 4, Part 5, and Part 6 of this series)

Birth control is back at the high court. On March 23, the Supreme Court will hear oral argument in Zubik v. Burwell and its six companion cases. Despite what you may have heard, religious objectors—whether they are nuns or Notre Dame—are not required to distribute birth control. On the contrary, an accommodation enables religious objectors to opt out of offering contraceptive coverage to their employees; once the objectors request the accommodation, the government arranges for the objectors’ insurance companies or plan administrators to provide the coverage—at no cost to either the objectors or their students and employees. But does this accommodation itself violate objectors’ free-exercise rights under the Religious Freedom Restoration Act?

No, say eight of the nine federal appeals courts to consider the question. These courts have rejected the argument that by opting out of providing contraceptive coverage, objectors’ religious exercise is substantially burdened because the government arranges for a third party to pick up the slack.

There is good reason that federal appeals judges across the ideological spectrum have rejected these substantial-burden claims. The government needs a way to know who wants an accommodation and needs to be able to make arrangements to protect the people—in this case, the women who are entitled by law to contraceptive coverage—affected by the accommodation. Asking objectors to, you know, state their objection is not just appropriate but essential.

The consequences of a contrary rule, moreover, would be untenable. Under the plaintiffs’ logic, a subsantial burden on religious exercise would arise from an exemption provided to a conscientious objector who opposed fighting in a war—on the theory that once the objector requested an exemption, the Army would pick a replacement. The lawyer for the University of Notre Dame, one of the challengers to the accommodation, admitted as much to the Seventh Circuit in 2014 (emphasis by me):

[A]s the Quaker leaves the selective service office, he’s told: “you know this means we’ll have to draft someone in place of you”—and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to “trigger” the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non‐Quaker replacement? That seems a fantastic suggestion. Yet confronted with this hypothetical at the oral argument, Notre Dame’s counsel acknowledged its applicability and said that drafting a replacement indeed would substantially burden the Quaker’s religion.

In light of these implications, the plaintiffs have reframed their argument. They claim that they object to being forced to contract with insurance companies that are providing insurance coverage to their students and employees or that they object to the “hijacking” of their health plans to distribute contraceptives against their wills. But these reformulations are no more persuasive, as the following examples reveal:

• Federal law prohibits restaurants from discriminating on the basis of race. But even if a customer has a religious objection to racial integration, that customer’s religious exercise is not substantially burdened by being forced to eat at restaurants that serve food to African-Americans.
• Federal law prohibits employment discrimination on the basis of sex. But even if a client has a religious objection to women working outside the home, that client’s religious exercise is not substantially burdened by being forced to retain a law firm that hires women.
• Federal law requires Americans to file tax returns. But even if an employer has a religious objection to taxation, that employer’s religious exercise is not substantially burdened by being forced to employ people who pay their taxes.

In each case, government regulation of third parties ends up limiting the contractual freedom of someone else with religous objections to that regulation. But just as there is no free-exercise right to patronize segregated restaurants, retain male-only law firms, or hire tax dodgers, there is no free-exercise right to buy insurance from a company that excludes required health coverage.

The same analysis applies to the argument that the government is imposing a burden by “hijacking” the objectors’ health plans to deliver contraceptives to the objectors’ students and employees. Hijacking is a bad word, yet it doesn’t change what’s actually happening: The government is requiring a third party (an objector’s insurance company) to provide something to another third party (an objector’s employees). Employers may not like these arrangements and may even deem them sinful, but they are arrangements between third-party employees and a third-party insurance company.

None of this analysis, I should add, requires the second-guessing of objectors’ religious beliefs. The objectors have already demonstrated that they have no actual objection to submitting written objections to providing contraceptive coverage; they have, in fact, been stating their objections in writing ever since they filed their lawsuits. Rather, they object to what happens next—that is, to the conduct of the government and third-party providers that takes place without the participation of the objectors. This is not a question of theology or moral philosophy; it’s a legal question about whether the phrase “substantial burden” includes burdens arising from the independent acts of others.

These objections to seeking a religious exemption from a regulatory requirement are so unprecedented that one is tempted to question whether these claims are motivated by something other than sincere religious objections to filling out a form. In Part 2 of this series, I’ll examine some questions about the sincerity of these legal challenges…

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.