Burdening Substantial Burdens

In Hobby Lobby v. Burwell, the Supreme Court held that religious believers could establish that their free exercise was substantially burdened just so long as they—or the corporation they had formed—believed that it was. This highly deferential stance paved the way for yet another challenge to the contraceptive mandate. In Zubik, religious organizations (ROs) contend that it is not just subsidization of contraception that can make an employer complicit in contraception use. Instead, even filling out a form registering one’s objection to the mandate can do so. The government has responded by vigorously arguing that filling out a form cannot reasonably be construed as a substantial burden. One can read the Court’s per curiam opinion as an implicit endorsement of the RO’s claim that the accommodation process substantially burdens their free exercise. Nonetheless, without a decision on the merits, it is not clear just why the ROs should prevail on the substantial burden question. Nor do the parties’ submissions provide the needed clarity as the arguments on each side are irredeemably flawed. Or so at any rate I argue here. I nonetheless believe that there is good reason for ROs to contest the accommodation process, as it requires that the ROs ratify contraceptive use, in contravention of their religious beliefs. On these grounds, I find that the existing process imposes a substantial burden on religious exercise. But I also take seriously the rationale behind the contraceptive mandate and I conclude by seeking to vindicate women’s rights to free contraception in ways that the ROs should find congenial