When Might Does Not Create Religious Rights: For-Profit Corporations’ Employees and the Contraceptive Coverage Mandate

Abstract

B. The Religious Freedom Restoration Act All of courts have addressed for-profit plaintiffs' RFRA claim, diverging primarily between courts which have found no substantial burden and therefore no merit to plaintiffs' claim, and those which have found a substantial burden as well as no clear compelling interest in applying mandate to plaintiffs and therefore have granted plaintiffs' preliminary injunctive relief. Eleven district courts found that plaintiffs had failed to prove a substantial burden under RFRA. (143) Five district courts, on other hand, granted plaintiffs a preliminary injunction after finding that government had provided too many exemptions to contraceptive coverage mandate for a compelling government interest to exist. (144) Lastly, three district courts granted plaintiffs preliminary relief because courts' uncertainty on merits warranted maintaining status quo. (145) The circuit courts have also differed: Seventh, Eighth, Tenth, and District of Columbia Circuits granted two, two, three, and one preliminary injunctions each respectively, while Third and Sixth Circuits, and Circuit Justice Sonia Sotomayor reviewing Tenth Circuit's decision, denied one, two, and one each respectively. In two of its three decisions, Tenth Circuit remanded to district court for further consideration on two remaining preliminary injunction factors. (146) This section will focus on courts' consistent points of tension. 1. Substantial Burden The linchpin for courts under substantial burden prong is deciding what is specific burden that contraceptive coverage mandate imposes on a for-profit plaintiff's religious exercise, and whether burden is a sufficiently direct imposition on an action rather than a belief to qualify as substantial. (147) The courts have most diverged over this prong, with courts that have found a substantial burden subsequently finding that contraceptive coverage mandate fails RFRA, while courts that have found that there is no substantial burden necessarily finding that mandate survives RFRA scrutiny. Eleven district courts, first Third Circuit opinion, Sixth Circuit, and first Tenth Circuit opinion found that contraceptive coverage mandate did not violate RFRA because there was no substantial burden on corporate plaintiff. (148) This result followed from characterizing burden complained of as being that the funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by healthcare providers and [employees] covered by [the plaintiff]'s plan, subsidize someone else's participation in an activity that is condemned by plaintiff's religion. (149) None of these courts found anything in regulations that required plaintiffs to personally participate in activity to which they objected, or to change their behavior, or to change their religious exercise. (150) One court analogized plaintiff's argument to asking court to find a burden because an employee spends her salary on something of which employer does not approve; another emphasized that choice to use contraceptives ultimately rested not with corporation or its owners, but with employees. (151) A third court found this situation to be comparable to situation in Lee, stressing that both were concerned with effect of employer's religion on employees. (152) The courts concluded that contraceptive coverage mandate was degrees from imposing a burden on corporation, even further removed from imposing one on corporate owner who benefited from corporate form, and that such a claim could not support a finding of substantial burden as required by RFRA. (153) This burden was too attenuated to be substantial. By contrast, courts that have found that there is a substantial burden on corporate plaintiffs have done so by accepting plaintiff's characterization of that burden without independently scrutinizing burden for substantiality. …