RFRA and the Right-Wing Two-Step
by Michael C. Dorf
My latest Verdict column discusses an execrable ruling by Federal District Judge Reed O'Connor. He construes the Religious Freedom Restoration Act (RFRA) to exempt a for-profit corporation with 70 employees from the requirement--which implements a provision of the Patient Protection and Affordable Care Act--that employee health insurance cover PrEP, a medication that greatly reduces the risk of infection with HIV/AIDS. Why? Because the owner of the corporation believes on religious grounds that covering PrEP would make him complicit in same-sex sex acts, all sex acts outside of (opposite-sex) marriage (the only kind of marriage he recognizes), and illicit drug use. How? Well, because people who take PrEP will be less deterred by the risk of HIV/AIDS and will thus be more likely to engage in such activity.
As I explain in the column, the decision is outrageous--so much so that I found that I couldn't really come up with any hypothetical examples of similar logic to illustrate the outrageousness. Nothing was quite as bad as the actual case.
In today's accompanying essay, I want to focus on a particularly egregious move the Judge O'Connor makes. After finding that the application of the employee health insurance mandate to this particular plaintiff corporation would substantially burden its owner's religious exercise and thus trigger RFRA, Judge O'Connor acknowledges that the government has a compelling interest in combating HIV/AIDS. Nonetheless, he rules for the plaintiff because he says that the requirement of covering PrEP through employer-provided health insurance is not the least restrictive means of pursuing that compelling interest. That conclusion in turn rests in part on the observation that rather than compelling employers to provide the coverage, the government could simply provide the insurance or the PrEP itself directly.
As I explain in the column, that move is supported by precedent. Justice Alito, in his opinion for the Supreme Court in the Hobby Lobby case, made the same assertion with respect to contraception coverage. And in both cases, that's true--in theory. But in practice this contention constitutes what I'll call the right-wing two-step. It's disingenuous in the extreme. And it's ubiquitous.Here's how the two-step works.