In an important and carefully reasoned opinion yesterday, a
Republican-appointed federal district judge rejected on the merits a series of
RFRA and First Amendment challenges to the contraceptive coverage mandate under
the Affordable Care Act. More at Religion Clause
Strikingly, the court rejects the RFRA claim on the ground that there is no
substantial burden. The key reasoning, some of which might also be
relevant to several other sorts of cases (e.g., landlord cases) in which
the religious burden theory is that the provision of funds or services
The court's carelessness with respect to substantial burden prevented it from
facing up to the more interesting legal question re: exercise of religion.
I say that the court was careless because its analysis depends upon a
tendentious characterization of the nature of the religious objection.
For what it's worth, here are the allegations in the complaint relevant to
establishing the alleged burden on religious exercise:
Plaintiff O’Brien believes that he cannot pay for and provide coverage for
contraceptives, sterilization, abortion or related education and counseling
without
The court appears to have recharacterized the allegations in the RFRA claim to
make it easier to dismiss.
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Saturday,
It's a flawed ruling in two ways. First, they state, [P]laintiffs remain
free to exercise their religion, by not using contraceptives and by
discouraging employees from using contraceptives. Suppose we go to a
pre-Civil War America if a law had been passed that required employers to
contribute
Of course the law burdens religious exercise -- if you take religious exercise
to that extreme meaning. If you choose to take it to that extreme, then you
cannot be in that line of work or you must pay the penalty for engaging in that
kind of work.
You can't simply ignore civil law because
I find the court's argument strong here. You pay a salary, you pay FICA, you
pay unemployment insurance, you pay pension benefits, you pay vacation time,
holidays, and so on. And you provide health insurance benefits. Some of those
who have health insurance will use contraceptives. Just
So suppose the law specifically required the employer to pay directly to a
clinic its charges for an employee's abortion. The employee has an abortion at
a clinic, tells the clinic to send the bill to the employer, and the employer
then must pay the bill on pain of fines that will put the
