RFRA substantial burden analysis

Tue Feb 14 08:07:02 PST 2012

My last message did not go through, so I am resending (I apologize for any repetition).  I do think centrality has very much to do with it, and so I suppose I agree with Ted on that point and don't understand Marty's resistance to discussing the problem in terms of centrality.

In fact, I am uncertain about how some of the inquiries proposed by Marty as part of the substantial burden analysis do not inevitably and necessarily probe into matters of the centrality, or importance, of the belief - which is an inquiry that RFRA proscribes.

Suppose a religious employer comes to court and says, 'I am being compelled to purchase an insurance plan for my employees which, by hook or crook, offers products as to which I have a religious objection.'  If we stipulate as to sincerity (just for argument's sake...I recognize that some do not want to stipulate to this), then the reply that Marty is envisioning is: well, you seemingly acquiesce in various other sorts of activities which bear a factual resemblance to the complained-of activity (I am, for purposes of this inquiry, stipulating to their factual similarity), so you must not really be too troubled by the complained-of activity.  The complained-of activity must, that is, not be all that important to you in the scheme of your belief system, for if it were, you would have objected.  Or, stated again, notwithstanding your (sincere) claims to the contrary, it must not be all that central to your belief system.

This seems to be a problem if the idea is to inquire of the claimant something like the following, which is suggested by some of Marty's comment and Kent's quotes - 'What penalty would you be willing to accept so as not to violate your beliefs?  Would you pay a $200 penalty?  Would you pay a $2 million penalty?  Would you spend a month in jail?'

It seems to me that the aim of that sort of question is to identify just how important, or central, a particular religious reason is within the overall architecture of the belief system.  If a claimant is unwilling to submit to punishment X, then the argument is that the reason offered by the claimant must not be very important to it - must not really be all that central to the belief system in question.  But if that importance/centrality inquiry is barred by the terms of the statute, how is it a legitimate one for the state to make?  The whole point of barring a centrality inquiry was just exactly to prevent a court from making (theological) judgments about just where a particular belief sits - whether at the center or the periphery - of a claimant's system of beliefs, and to rely on that judgment to assess whether the burden imposed was substantial.

Marc DeGirolami

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, February 14, 2012 10:59 AM
To: Theodore Ruger
Cc: Law & Religion issues for Law Academics; Conlawprof at lists.ucla.edu
Subject: Re: RFRA substantial burden analysis

Thanks, Ted.  But just to be clear on a terminological point -- I don't think "centrality" is the right way to think about it (or characterize it), not least because the state is incapable of making such assessments of centrality, and also because RFRA now expressly excludes such an inquiry.

I assume that viewing contraception as sinful is, indeed, central to Catholic doctrine.  My point is simply that requiring employers to provide insurance coverage that they know will occasionally be used, at the employee's choice, for contraception, does not require the employer to transgress religious injunctions, any more than when the same employer chooses, without governmental compulsion, to provide wages to those same employees knowing full well that they will be used for contraception.  And I conclude this not because I have greater insight into Catholic truth or theology (anything but), but instead because I can see how these employers act, and their actions presumptively belie the notion that the HHS rule would in fact impose a substantial burden on their religious exercise.
On Tue, Feb 14, 2012 at 10:45 AM, Theodore Ruger <truger at law.upenn.edu<mailto:truger at law.upenn.edu>> wrote:
Responding to a couple of interesting points from the past 24 hours . . . . first, I share Marty's and Chip's sense that even some of us who support RFRA and FEC exemptions in principle might nonetheless be concerned about the government's complete unwillingness/incapacity to meaningfully assess religious organizations' claims of centrality in actual cases, which effectively gives religious leaders the authority to strategically define the metes and bounds of their sovereignty on particularly controversial issues.   Connecting this with Doug Laycock's point from yesterday that different religions can, and do, choose very different organizational forms and governance structures, leads to the observation that religions vary dramatically in their institutional ability to leverage exemption-based sovereignty gains using the doctrinal levers present in existing law.

Imagine, as a thought experiment, one were to design a new religious organization with the goal of carving out the widest possible swaths of conduct from generally-applicable social rules.   Assuming that politicians and courts continue to decline to seriously assess claims of centrality, one could hardly do better than the Weberian structure of the Catholic church.   You would want, for instance, your church to lay down a set of religious commands that was highly specified and rule-based, rather than embodied in more general standards of belief or behavior.   You would want these rules to be promulgated by a centralized technocratic authority rather than devolved to local congregations, and you would want this rulemaking authority to be exercised early and often, so that the rules are in place well in advance of the particular cases and controversies in which they will be asserted as central to the religion's faith.  You would want to create specialized arms of your organization to perform various functions in the otherwise secular domain, such as the provision of health care or education, and to have your central conduct rules sweep broadly to regulate these non-liturgical functions as well.     And finally, to prevent a massive Tieboutian exit by your membership in the face of this profligate rulemaking, you would want to radically underenforce these commands internally, even while asserting their centrality as against outside influence.

Obviously the Catholic church embodies this structure, and so is particularly well-placed to leverage exemption-based protections.   None of this points to any obvious doctrinal or political result on the contraception issue.   But I do think the disparate abilities of different religions to capture the latent sovereignty gains offered by a jurisprudence/politics of religious exemption is cause for some thought, and supports the suggestions by Marty and Chip that we ought to consider more seriously interrogating the claims of centrality raised by some religious groups in actual cases.

Best,

Ted

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