RFRA v. Bureaucracy: The SCOTUS Order in Little Sisters

By Mike Dorf

On Friday, the SCOTUS issued an order in The Little Sisters case.  The order reads, in full, as follows:

The application for an injunction having been submitted to  Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.

Notwithstanding the disclaimer at the end, it is hard not to read the order as reflecting at least some view on the merits.  After all, if the Court had accepted the government's representation that, because the Little Sisters use a "church plan," their employees would not receive contraceptive insurance in any event, it is hard to see how the equities could have warranted a stay.  Accordingly, the Court's order suggests that, at least at this stage of the litigation, the plaintiffs have made out a colorable claim that they are being required to do something--fill out a form that plays some causal role in other people receiving contraception--that conflicts with their religious beliefs.

In my prior blog posts (here and here) as well as a Verdict column, I expressed skepticism about the Little Sisters claims for a number of reasons, including the point that in order to succeed on a RFRA claim, it is not sufficient for a claimant to say that the government is requiring her to participate in an activity she regards as wrong (because the government does that sort of thing to everyone in various ways); the level of participation must, from the claimant's perspective, rise to a violation of some religious obligation.

Accordingly, it is not clear to me that the temporary relief that the Little Sisters won should satisfy them.  They objected to filling out the government's Form 700 because of the consequences of that form.  But if the government is able to accomplish whatever it needed to accomplish without the form, then the Little Sisters may regard even the level of participation contemplated by the Court's order as violating their religious obligations.  I don't think that they will take that view, but it's possible.

In any event, Friday's Supreme Court order reminded me a bit of a (quite possibly apocryphal) story I once heard about an order issued by a federal district judge.  According to the story, a pro se plaintiff sued the FBI, alleging that the government had been using sophisticated electronic means to control his thoughts.  The government denied the allegations and the judge scheduled a hearing.  At the hearing, the plaintiff described his subjective experience, whereupon the government attorney again denied that the government had been controlling his thoughts.  The judge then asked the plaintiff if he would be satisfied by an order to the government permanently enjoining it from directing his thoughts. "Yes, your honor," he reportedly answered.  The judge then turned to the government attorney and asked if she would commit the government to abide by such an order going forward, so long as it said bothing about liability for any past practices.  The government lawyer wisely said that she would.  Thereupon, the judge entered a consent decree to that effect and everyone went away happy.

Did the judge in this tale really have the legal authority to issue the consent decree?  Maybe not, but so what?  This was a creative solution.  Likewise, with the Little Sisters case, if the plaintiffs are satisfied with giving the government the same operative information that comes with Form 700 but not on Form 700, then it seems like we should all go home and call it a day.

Sure, it seems strange that anyone would have a religious objection to a particular government form but not to providing the same information with a different piece of paper, but maybe not so terribly strange. Suppose that Form 700 contained a watermark stating "by using this form, the applicant acknowledges the sovereignty of Satan."  Surely then it would be understandable for religious objectors to invoke RFRA (although the watermark would surely violate the Establishment Clause as well).  And certainly protected religious beliefs--obligating believers to use one but not another kind of mind-altering substance, or making it permissible to consume the flesh of animals raised and slaughtered in one inhumane way rather than in another inhumane way, or designating one day rather than another as the sabbath--are, from the perspective of non-believers, arbitrary.

So, if the interim order is acceptable to all sides, then kudos to whoever on the Court came up with it.