It did not take long for the Supreme Court to resume its fight over the Department of Health and Human Services’ contraception mandate. Last Thursday, just three days after the Hobby Lobby decision, Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, published a dissent from the Court’s emergency preliminary injunction to Wheaton College in its HHS lawsuit. But her preemptive strike failed to hit its target. In fact, the contradictions in Justice Sotomayor’s reasoning reveal why the religious non-profits ought to prevail in their legal battle over Obamacare and religious freedom.

Last Thursday, the Court prevented the government from enforcing the HHS mandate against Wheaton, a highly selective Christian college outside of Chicago, while its case proceeds. The college, along with other religious non-profits, has been offered an “accommodation” by the Obama Administration that is designed to push off payments for and administration of HHS-mandated services to the non-profits’ insurance companies, or, in the case of self-insured institutions, their third-party administrators. It has been deemed insufficient, however, by many religious institutions—including the University of Notre Dame and the Little Sisters of the Poor—because they believe that it makes them complicit in providing coverage for contraception and abortifacients that violate their religious beliefs. They and dozens of other religious non-profits have filed lawsuits alleging violations of, among other things, the Religious Freedom Restoration Act (RFRA), the same 1993 federal statute that provided Hobby Lobby its legal victory last week.

In some ways, the religious non-profit cases are similar to Hobby Lobby’s, but the accommodation makes them different in an important respect.

Analyzing Religious Liberty Claims

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Every RFRA case has at least three threshold questions:

(1)   Are the litigants bringing a suit based on sincere religious objections?

(2)   If they are sincere, are the litigants burdened in their religious exercise?

(3)   If they are burdened, is the burden substantial?

Only if all three are answered affirmatively do courts engage in rights-balancing analysis, which consists of two subsequent questions:

(4)   Is the state pursuing a compelling state interest?

(5)   If so, is the state pursuing that interest using the least restrictive means possible?

In Hobby Lobby, after it was established that for-profit corporations enjoyed protection under RFRA, the threshold questions were easily answered. The government did not challenge Hobby Lobby’s or Conestoga Wood’s sincerity; forcing them to pay for contraceptives they deemed religiously objectionable clearly burdened the companies’ religious exercise; and the size of the penalties for non-compliance made that burden substantial.

Justice Sotomayor’s opinion on Wheaton’s injunction made clear that the second question will be at issue here in a way that it wasn’t in Hobby Lobby. She contended that, on account of the accommodation, Wheaton is not burdened in its religious exercise. “Any provision of contraceptive coverage by Wheaton’s third-party administrator,” she wrote, “would not result from any action by Wheaton; rather, in every meaningful sense, it would result from the relevant law and regulations.” Because Wheaton does not provide, in a “meaningful sense,” the coverage to which it objects, she concludes that it does not suffer a burden on its religious exercise.

Quoting an analogy used by Seventh Circuit Judge Richard Posner in Notre Dame’s case, Justice Sotomayor compared Wheaton’s position to that of a Quaker objecting to military service:

Suppose the Quaker who’s been called up tells the selective service system that he’s a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he’s told: “you know this means we’ll have to draft someone in place of you”—and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs.

Justice Sotomoyor was careful to note that she was not disputing the sincerity of the college’s religious objections: “The sincerity of Wheaton’s deeply held religious beliefs,” she wrote, “is beyond refute” (sic). Nonetheless, she continued, “Not every sincerely felt ‘burden’ is a ‘substantial’ one and it is for courts, not litigants, to identify which are.”

On this last point, Justice Sotomayor is correct. To press a legitimate religious liberty claim, litigants must be sincere in their profession of religious beliefs. But that sincerity, and the authenticity of felt perceptions of religious oppression, by themselves do not substantiate the existence of religious burden within the meaning of the law.

The inquiry developed to determine the legal existence of a religious burden under the Free Exercise Clause—which would seem clearly applicable to RFRA, as it deals with the same exact issue—is whether the government “affirmatively compel[s] . . . , by threat of sanctions, [a litigant] to refrain from religiously motivated conduct or to engage in conduct that they find objectionable for religious reasons” (Bowen v. Royor whether governmental action has the “tendency to coerce individuals into acting contrary to their religious beliefs” (Lyng v. Northwest Indian Cemetery Protective Association).

Justice Sotomayor’s conclusion that Wheaton has not suffered a religious burden holds only if, in fact, the college is not forced to engage in conduct that it finds objectionable for religious reasons or coerced to act contrary to its religious beliefs.

Does a Religious Burden Exist?

Here we reach the most remarkable aspect of Justice Sotomayor’s opinion: It presents compelling evidence that it is absolutely essential that Wheaton act in a specific manner dictated by the government for the accommodation to function.

The accommodation given to religious non-profits requires them to “self-certify” that they object to provisions of the HHS mandate. The mechanism to do so requires the non-profit to send a completed government-issued form, EBSA Form 700, to the Department of Health and Human Services and to its insurance company or third-party administrator. Upon receipt of the form, HHS regulations oblige the insurance company or third-party administrator to provide coverage for the contested contraceptives at no cost either to the employer or to the employees who file claims.

Wheaton and others object to this regulatory scheme because, in their understanding, sending the form to their third-party administrators triggers the provision of coverage for services they find religiously objectionable. The linchpin of Wheaton’s argument is that it is complicit in the provision of objectionable contraception coverage because, if it does not act, the coverage is not provided.

Justice Sotomayor herself points out that, if Wheaton does not send EBSA Form 700 to its third-party administrator, its administrator will not know it is responsible to provide the HHS-mandated contraception coverage. Moreover, even if a religious non-profit notifies HHS that it will not provide the objectionable coverage, HHS will not know the identity of the non-profit’s insurance company or third-party administrator; and without notification, those parties will not know that they need to start coverage. Justice Sotomayor asks, “Is HHS to undertake the daunting—if not impossible—task of creating a database that tracks every employer’s insurer or their-party administrator nationwide?”

The fact that Wheaton’s compliance with HHS’s regulatory scheme is required—even essential, according to Justice Sotomayor’s own analysis—demonstrates that Wheaton most definitely does participate in it in a “meaningful sense.”

To repeat: The question, “Does a religious burden exist?” turns on whether the college is “affirmatively compel[led]. . . , by threat of sanctions, . . . to engage in conduct that they find objectionable for religious reasons.” Only if Wheaton performs a specific action ordered by the government—an action the college holds to be contrary to its religious conscience—will the contraception coverage be provided. If the college fails to act as HHS requires, it will be penalized. Legally, that is the very definition of a religious burden. Given the amount of the penalty, there is no doubt that it is “substantial.”

A more accurate rendition of Judge Posner’s analogy is that the selective service officer tells the Quaker that he is willing to grant conscientious objector status—but only if the Quaker identifies a colleague and brings him back to the office to take his place. Wheaton has not only been drafted; the HHS accommodation compels it to help recruit its own replacement against its will.

Is There a Less Restrictive Approach?

The non-existence of a religious burden was not Justice Sotomayor’s only argument. Even if Wheaton was substantially burdened, she asserted that the accommodation’s regulatory scheme adopts the least restrictive way for the government to accomplish its compelling interest in providing Wheaton employees contraception.

That argument, too, is doubtful. An obviously less restrictive approach, which Justice Sotomayor herself suggests, would be for HHS to maintain a database of religious non-profit objectors’ insurers and third-party administrators. With that information, they could leave Wheaton and other religious objectors entirely out of the third-party notification process. Or perhaps HHS could have the religious non-profits’ employees certify that their employers do not provide coverage for mandated HHS contraceptives.

Given HHS’s performance on, it may not actually possess the administrative competence to develop such regulatory alternatives; but, presumably, plausible ways exist to meet RFRA’s demands. In granting Wheaton an emergency injunction last week, the Court ordered HHS to proceed without requiring Wheaton to send EBSA Form 700 to its third-party administrator.

Thursday’s action was only the beginning of what is sure to be another closely watched and extraordinarily contentious legal battle over the meaning and scope of Americans’ religious liberty protections. Not only did Justice Sotomayor’s first strike fail to harm Wheaton and the other religious non-profits, it exposed a glaring weakness in her legal arsenal.