Smith remains good law. Yet Fulton appears to have rewritten its meaning.
We are in something of a lull in the Zubik v. Burwell litigation, the complex of cases brought by several nonprofit organizations, including the Little Sisters of the Poor, challenging the government’s contraception mandate and the particular “accommodation” it has offered these groups. At the end of March, the Supreme Court issued a rather peculiar order asking the parties to submit additional briefing on this question:
whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.
It even offered a hypothetical example of how such an arrangement might work that seems sensible—except, of course, in situations involving self-insured plaintiffs, where such a solution wouldn’t work, at least from the plaintiffs’ perspective. The parties have now submitted their supplemental briefs and another round of replies is forthcoming.
It’s always difficult to squeeze much predictive juice out of orders and oral arguments, but it doesn’t seem implausible that a majority of the Court is not eager to decide this case on the basis that the claimants have not established a prima facie “substantial burden” on their religious exercise. The sort of solution contemplated by the order involves other matters in the inquiry concerning the Religious Freedom Restoration Act of 1993—the least-restrictive-means requirement, in particular. The overwhelming majority of appeals courts held that the authorization document that the federal government required the nonprofits to sign, which designated by law other parties to provide the coverage at issue, did not constitute a substantial burden on the claimants’ free exercise of religion. At oral argument, there did not seem to be much appetite for that resolution.
A large part of the reason is that the substantial burden inquiry is beset by internal tensions that render it nearly incoherent. The basic problem is that on the one hand, courts are required independently to evaluate not only whether a burden on religion exists but also whether that burden crosses what one might be forgiven for suspecting is an intentionally imprecisely defined threshold of substantiality.
On the other hand, courts are required not to evaluate independently the burden or its substantiality for reasons of institutional incompetence (the government doesn’t do religion well) and anti-entanglement (the government shouldn’t do religion even if it were to do it well), but instead to defer, and to defer completely, to the claimant. The more completely courts defer, the nearer they sail toward the Scylla of legal incoherence. The more searching their inquiry, the more they tack toward the Charybdis of institutional incompetence and excessive religion-state entanglement.
Many courts have tried to avoid these problems by assuming that claimants have asserted a substantial burden on religious exercise so long as they are “sincere”—that is, so long as they aren’t lying. Excepting cases of unabashed and practically self-confessed fraud (not too many of those!), the sincerity limitation does almost no work. The typical result is that courts generally avoid thinking too deeply about the substantial burden inquiry, opting instead to follow Virgil’s advice to Dante: “non ragioniam di lor, ma guarda e passa.”
Making any sense of the inquiry would require adopting some definitions. A burden on religious exercise is a weight on it—or, less metaphorically, it is simply an interference with religious exercise. “Interfere” is the term used by the Religious Freedom Restoration Act in its “Congressional Findings and Declaration of Purpose”: “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” Interference may be intentional or unintentional, but it is interference in either case. Interference might be compulsion to do or not do certain things, but it also includes any governmental act that would frustrate the claimant’s capacity to exercise his or her religion. A governmental act that interferes with the ability of a claimant to believe or practice his or her faith burdens it.
What about “substantiality”? Here, the text of another religious accommodation statute, the Religious Land Use and Institutionalized Persons Act of 2000, suggests an answer: The substantiality of the burden is to be measured against the “system of religious belief” of which the religious exercise at issue forms a part. A system is a group of interdependent items—in this case religious beliefs and practices—that together constitute a unified whole.
Therefore, to claim that a law imposes a “substantial burden” on religious exercise is to claim that 1) the law interferes with religious exercise; 2) it does so significantly, importantly, or centrally; and 3) its significant interference with religious exercise can be understood and evaluated by a legal decision-maker against a background system of other, interconnected religious beliefs and practices.
There can be no evaluation of the substantiality of a burden without some understanding of the place (“place,” of course, trades on the metaphor of “centrality” and “periphery”) or comparative importance of the exercise at issue within a religious system. It is possible, in theory, that a religious system might be constituted by an interconnected set of beliefs and practices each of which is precisely equal in importance, so that no belief or practice would be more central or important than any other. In such a case, all of the religion’s beliefs and practices would be central. It is more probable, however, that some beliefs or practices will be located at the core or center of the system, while others will lie at the periphery, and that the question whether a law substantially burdens a particular belief or practice will depend to some degree on its position and relationship to other beliefs or practices within the religious system.
Courts surely ought to defer to claimants’ understandings of their respective systems of religious belief. But, as RLUIPA seems to recognize implicitly, claimants also and just as surely ought to have a system of religious belief before alleging a substantial burden on it.
There are many serious objections to these proposals: that they risk overly entangling the state with religion; that they ask too much of an otherwise incompetent authority (courts) when it comes to religious matters; and that they fundamentally misunderstand the nature of religion as an American legal concept. But perhaps the most serious criticism is that any proposal that makes judicial inquiry as to the substantial burden requirement more rigorous risks undercutting otherwise meritorious claims at too early a stage in litigation.
Religious accommodation is at present so controversial—particularly when it stands athwart or even apart from what are overwhelmingly perceived to be vital gains in sexual liberty and equality—that the practical effect of tightening the inquiry may well be to empower judges to tell organizations like the Little Sisters of the Poor that they just don’t understand their own religious commitments.
There are worse things than incoherence, after all.