Hey Little Sisters, What Have You Done?

By Mike Dorf

On New Year's Eve, Justice Sotomayor issued a stay in Little Sisters of the Poor Home for the Aged v. Sebelius, thus ensuring that, for the time being, the provisions of the ACA regs that guarantee contraceptive coverage will not be applied to them.  Justice Sotomayor gave the government until Friday to file a response.  The government filed its brief on Friday and it is, in a word, devastating.

Unlike the plaintiffs in the Hobby Lobby case, who do not qualify for a religious exemption under the ACA and therefore argue that they are nonetheless entitled to a religious exemption under the general background principle of the Religious Freedom Restoration Act (as I explained here), the Little Sisters plaintiffs do qualify for an exemption from the requirement to provide employer-based health insurance for their employees that includes free contraceptive coverage.  But, as the government brief notes, not only are the Little Sisters not required to pay for contraceptive coverage for their employees; those employees do not even get free contraceptive coverage from a third-party insurer.  Here's the money quote from the government's brief:

[The plaintiffs] need only self-certify that they are non-profit  organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan.  At that point, the employer-applicants will have satisfied all their obligations under the contraceptive coverage provision. Thus, as this case comes to the Court, it is not about the availability or adequacy of a religious accommodation, but rather about whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks.

When I first read that I thought it couldn't possibly be right, but then I read the rest of the government brief and concluded that it is.  The government notes that the piece of paper that the plaintiffs need to sign to certify that they have a religious objection to providing health insurance with contraceptive coverage authorizes the third-party plan administrator to decide whether to provide health insurance that includes contraceptive coverage, but that another statute--the Employee Retirement Income Security Act (ERISA)--provides that "church plans" need not provide contraceptive coverage. Thus, the government argues extremely effectively, even if a religious employer's signing of a piece of paper that has the consequence of facilitating some third party to provide contraceptive coverage for employees can be construed as a "substantial burden" on religious exercise under RFRA, here there is not even that burden.

But I would go further.  I would say that even if the consequence of signing the paper were that the employees get contraceptive coverage, that still would not count as a substantial burden under RFRA.  I think I can illustrate the point by an analogy.

Federal law currently permits conscientious objectors to avoid military service.  Suppose that Congress reinstates the military draft, with an individualized draft lottery based on Social Security numbers.  Now suppose that new regs provide that in order to acquire conscientious objector status, an American who receives a draft notice must sign a certification that he has a religious objection.  (The statute is written in terms of religious objections but case law defines eligibility somewhat more broadly.  For my purposes, the analogy works better if we only consider religious objectors.)  Now suppose that a Quaker who is categorically opposed to war gets a draft notice.  If the Little Sisters plaintiffs are right, then he is not only entitled to his exemption from the draft; he's entitled to get his exemption without even signing the piece of paper saying he is entitled to his exemption.  Why? Because if he signs that piece of paper, then the government will draft the next person on the list and so he will be "participating" in the war effort to which he is religiously opposed.

Indeed, it seems to me that my hypothetical Quaker has a much more sympathetic case than do the Little Sisters plaintiffs, even on the assumption that the latters' certification leads to a third party's providing free contraceptives to the employees.  The employees probably were going to get contraceptives anyway, whereas the Quaker who signs the form really does lead the government to draft one more person into the military.  So the Quaker has a better argument that his signing the form is a kind of participation in what he regards as evil.

And yet it would be crazy to say that the right to a religious exemption is a right to a religious exemption from the regime for administering religious exemptions. In my hypothetical case, the conscientious objector loses and, a fortiori, the Little Sisters plaintiffs should lose even if their employers were going to get contraceptive coverage.  Double a fortiori, the Little Sisters plaintiffs lose in the actual case where their employees don't even get contraceptive coverage.  And triple a fortiori, they haven't made the extraordinary showing necessary for a stay.

In thinking about this case, I tried to concoct various analogies but I couldn't come up with a claim that was as weak as the actual claim.  For example, I thought that if the Little Sisters win, then RFRA provides Quakers and other religious objectors with the ability to deduct from their taxes the pro rata share of the federal budget that goes to the military.  But the thing is, there's actually a better argument for that result than for the result that the Little Sisters seek.

Justice Sotomayor never should have granted this stay.  She or the full Court should dissolve it posthaste (which is not to say that they will).