Having processed this rich conversation, I find myself convinced that a) the objecting religious institutions see themselves as burdened by these rules, and that government should not second-guess that determination, but b) the question of substantiality has to be for the government under some sort of objective standards (character of conflict? degree of conflict? cost of defiance? ease of avoidability?). If any and every objector gets to self-determine both substantiality and burden, then every case of enforcement of federal law can become a RFRA case, with the government always having to satisfy strict scrutiny or allowing opt-out. That CAN'T be right. (And it wasn't the law under Free Exercise, pre-Smith. See Lyng v. Northwest Indian Cemetery Protective Ass'n; Bowen v. Roy.)
But let's assume that the complainants in the filed RFRA cases (a college, a university, a religious media network) can satisfy the "substantial burden" test. If they can, so can every entity, non-profit or profit, controlled by those with similar religious beliefs. Moreover, this can't possibly be limited to objections to contraception and arguably abortifacient drugs. Other employers may assert religious objection to the provision of highly intrusive (and very expensive) end-of-life treatments, on the grounds that they are sinful and immoral attempts to defy divine will about when someone's time has come. Others may object on religious grounds to any use of conventional medical care. Are we not thus in a place quite like U.S. v. Lee, where the Supreme Court rejects an opt-out claim by the Amish from the obligation of employers to pay contributions, and withhold employee contributions, under the Federal Insurance Contribution Act (FICA), because the Court perceives that a scheme of social insurance (in that case, Social Security) depends on universal participation? Allowing some to opt out of an expensive obligation on religious grounds will invite fraudulent claims, be administratively very difficult, and will eventually gut the system. Isn't the ACA system similarly one of universal social/medical insurance, albeit one with more of a role for private providers? And if so, wouldn't the result be the same in the filed ACA cases as in Lee? (Of course, HHS (or Congress) could create a more limited exemption, as HHS has already done. But the scope of that permissive accommodation would be for political decision, not judicial decision under RFRA. And that political decision (for better and worse) does not depend on principled, consistent standards of which burdens are "substantial". It depends on clout. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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