Zubik v. Burwell, Part 2: The Religious Objectors Who Cried Wolf

Photo: wolf
Flickr/Creative Commons—Luke Jones

By Gregory M. Lipper

(Read Part 1, Part 3Part 4Part 5, and Part 6 of this series)

Yesterday, I evaluated the unprecedented arguments, by the plaintiffs in Zubik v. Burwell and its companion cases, that the process for seeking a religious exemption from the contraceptive-coverage regulations itself burdened the objectors’ religious exericse. Today, I move to a more basic question: Are these idiosyncratic claims sincere?

Like all free-exercise provisions, the Religious Freedom Restoration Act protects only sincere religious beliefs; it does not permit challengers to cloak ideological or financial objections in religious garb. Insincerity can reveal itself in several ways: prior inconsistent conduct, claims that are suspiciously timed, or outright admissions of an ulterior motive. The RFRA challenges to the contraceptive coverage regulations—and especially the accommodation—have presented several of these elements. But the government, in resisting these RFRA challenges, has not challenged the plaintiffs’ sincerity.

That said, there are several reasons to doubt the sincerity of several plaintiffs’ claims, and to see these lawsuits as an exercise in politics arising from broader conservative and religious opposition to the Obama administration’s positions on issues such as healthcare reform, stem cell research, abortion, and marriage equality. This apparent insincerity provides yet another reason to reject the latest round of RFRA challenges to the contraceptive accommodation.

A. Shocked—Shocked!—To Find…

From the start, there was reason to doubt the sincerity of the RFRA challenges to the contraceptive-coverage regulations. Many of the for-profit corporations serving as plaintiff—including Hobby Lobby, whose case was decided by the Supreme Court in 2014—had previously covered the very drugs and devices at issue in the lawsuits. (By the way, Hobby Lobby continues to invest its retirement plan in companies that manufacture the drugs and devices to which it purported to object on religious grounds.) Most of the companies in this situation offered the same explanation for their prior coverage of these drugs and devices: After the Obama administration announced the contraceptive coverage regulations, the company reviewed its healthcare plan and discovered that the company was covering contraceptives. The government, however, left these explanations go unchallenged.


One company was even more candid about its motives. The CEO of organic-food company Eden Foods stated that he was challenging the coverage regulations because, “I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that?” When evaluating his claims, the Sixth Circuit remarked that the CEO’s “‘deeply held religious beliefs’ more resembled a laissez-faire, anti-government screed.”

Despite these red flags, the government declined to challenge the sincerity of the for-profit corporations challenging the coverage requirements. And the Supreme Court resolved the cases by ruling, in 2014, that RFRA required the government to exempt for-profit corporations from covering contraceptives.

B. Refusing to Take Yes for an Answer

Questions about the sincerity of the legal challenges are even more pronounced in the context of the accommodation at issue in Zubik—an accommodation that exempts religious objectors from covering contraceptives so long as they state their objection in writing. When the Obama administration announced that the Department of Health & Human Services would provide an accommodation (third-party insurers and plan administrators would provide the missing coverage to affected women), some religious organizations, such as Georgetown University and the Catholic Health Association, accepted and even praised it. Likewise, the University of Notre Dame’s president called the accommodation a “welcome step toward recognizing the freedom of religious institutions.” But dozens of religious institutions challenged it, raising the unprecedented argument that the process of requesting a religious exemption itself burdens religious exercise.

(In certain cases, the challenge was especially hard to swallow. For example, in the midst of challenges brought by the Archdiocese of New York, the New York Times reported that “acknowledging that the ”archdiocese’s own money is used to pay for a union health plan that covers contraception and even abortion for workers at its affiliated nursing homes and clinics.” The burden from filling out a form to request an accommodation from milder federal requirements seemed to pale in comparison.)

The insincerity of Notre Dame, whose lawsuit my organization is opposing on behalf of a Notre Dame student, has been especially well documented. Despite praising the accommodation in Februrary 2012, Notre Dame filed suit three months later to challenge it. (That lawsuit was dismissed as premature.) After HHS issued the final accommodation in July 2013, Notre Dame waited five months to renew its challenge, filing its new lawsuit just weeks before the regulations were set to take effect. The trial judge was baffled: “Notre Dame has in many ways created its own emergency, and I am left to wonder why.”

It turns out that before Notre Dame filed its second lawsuit in late 2013, the university had decided to take advantage of the accommodation—and had even informed students of its decision. But in October 2013, a conservative alumni group wrote to Notre Dame’s President and urged the University to bring a new lawsuit because of the university’s “symbolic importance” to the RFRA challenges; the new lawsuit thus apparently arose from alumni pressure, not genuine religious concern. Even after it filed its lawsuit and its requests for emergency relief were denied, Notre’s Dame president stated that the university’s “complicity is not an evil so grave that we would compromise our conscience by going along” with the accommodation. “I don’t see this as a scandal,” he said, “because we are not giving out contraceptives.” Yet inexplicably, Notre Dame’s lawsuit continues.

Although other plaintiffs have not been as candid as Notre Dame, their statements have been clear enough. Especially telling have been the divergent reactions of certain plaintiffs, and their lawyers at conservative religious legal organizations, to (1) offers of additional accommodations by HHS, and (2) orders from the Supreme Court providing for similar accommodations. If we were dealing with genuine efforts to obtain religious accommodations from an actual substantial burden on religious exercise, we would expect similar reactions to each set of decisions.

That is not what we got. For instance, in response to the Supreme Court’s interim order in Wheaton College—notify the government of your objection, and the government may arrange for your employees to receive contraceptive coverage from your insurance provider—the Becket Fund for Religious Liberty boasted of “another important victory against the HHS Mandate, [in which] Wheaton College received last minute relief from the Supreme Court today, protecting the College’s right to carry out its religious mission free from crippling IRS fines.” But when describing the government’s supplemental accommodation—notify the government of your objection, and the government may arrange for your employees to receive contraceptive coverage from your insurance provider—the Becket Fund complained that “the government still won’t give up on its quest to force nuns and other religious employers to distribute contraceptives.”

This is not how you’d expect a sincere objector to respond to what was essentially the same relief from two different entities. These divergent responses suggest, instead, that the objectors and their lawyers are more concerned with scoring political points against the Obama administration than with relieving actual burdens on actual religious exercise.

* * * * *

There has been one other anomoly in many of the allegations that the contraceptive-coverage regulations and accommodation substantially burden religious exercise: Although the Catholic Church opposes birth control, evangelical Protestants typically do not. Instead, the latter set of plaintiffs has challenged the regulations as applied to only certain forms of birth control—including emergency contraception and the IUD—and have claimed that these contraceptives are abortifacients. In Part 3 of this series, I’ll look what scientists say about these attempts to conflate contraception and abortion…

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

One thought to “Zubik v. Burwell, Part 2: The Religious Objectors Who Cried Wolf”

  1. This argument is even weaker than what you stated yesterday. None of the organization’s in part A are a party to this challenge and none of the organization’s in part B were a party to the Hobby Lobby case. I’m thinking you don’t actually have any valid argument to present.

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