by Noah Feldman
The long march of religious liberty exemptions is gaining speed. The people who brought you contraceptive care exemptions and COVID rule and vaccine exemptions have now moved on to insurance for anti-HIV drugs. Last week, a federal district court held that a Christian employer is entitled to an exemption from the requirement that all insurance plans must cover pre-exposure prophylaxis (PreP) drugs that prevent the spread of HIV.
Superficially, the court’s decision, under the Religious Freedom Restoration Act (RFRA), seems to resemble the exemption from the Affordable Care Act’s mandatory contraceptive coverage that the Supreme Court granted in the 2014 Hobby Lobby case. But on a deeper level, the new decision goes much further than the Hobby Lobby decision.
If upheld by the appellate court and the Supreme Court, the Texas ruling would exempt an employer who refused to provide any health care coverage of any kind on the ground that medical insurance encourages people to rely on medical science, not religious faith, in planning their lives.
To see how important this case is, you have to go back to 2014. In the Hobby Lobby case, the Christian employer claimed its religious liberty was burdened by providing insurance for contraception. And Hobby Lobby explained that it considered contraception religiously wrong.
In contrast, in the new case, Braidwood Management Inc. made a much less direct argument. It claimed its religious exercise was substantially burdened because providing PreP drugs “encourage homosexual behavior, prostitution, sexual promiscuity and intravenous drug use.”
In other words, Braidwood did not say that it was inherently religiously wrong to use the medicine, the way Hobby Lobby said it was wrong to use contraception. It said, rather, that providing insurance for it would “encourage” behavior they believe violates the Bible. The district court accepted that extraordinarily broad assertion.
The upshot is that, under the new ruling, anyone who wants to avoid almost any provision of federal law would be able to say that obeying the law would enable behavior that his religion disfavors.
The Department of Health and Human Services seems to have understood the enormous implications of Braidwood’s broad assertion of a right to exemption. In response, HHS argued that Braidwood’s claim was based on an “empirical” assertion, namely that these medicines “facilitate” gay and extramarital sex. Consequently, HHS reasoned, Braidwood should have to prove its fact-based claim about the world, not simply assert it without providing any evidence.
The court sharply rejected HHS’s position. “Defendants [HHS] inappropriately contest the correctness” of Braidwood’s beliefs, the court wrote, “when courts may test only the sincerity of those beliefs.” In other words, it doesn’t matter if the assertion is true; all that matters is that Braidwood believes it. Under this logic, once Braidwood, or anyone else seeking an exemption on religious grounds, asserts its sincere belief that something (anything!) burdens its religious belief, that’s the end of the story. The courts must accept whatever the party says.
It’s understandable that courts don’t want to question the logic of people’s asserted religious beliefs. After all, for many people, religion is a matter of faith; and many forms of faith are and are meant to be outside of rational logic.
Seen from this perspective, courts should always defer to every sincere assertion of religious belief, no matter how much it may depend on factual claims about the real world that are unsubstantiated or even false. And although the law technically requires considering the sincerity of the objector’s belief, in practice, courts almost invariably defer to their sincerity as well.
The long-run consequences of accepting all asserted religious liberty claims, however attenuated their logic, is that there is no logical stopping place for what valid religious liberty claims can be made for religious exemptions from federal law. If you can state your objection in a sentence — maybe even if you can’t because it’s too mystical — then the law does not apply to you.
Indeed, it’s easy to imagine an employer saying that it should be exempt from providing any medical coverage of any kind under the Affordable Care Act because it believes having medical insurance facilitates people relying on science rather than divine faith when it comes to their health. This would be an easy claim for any denomination that denies the validity of Western medicine, as Christian Science once clearly did.
But recall that, under RFRA, anyone can make any religious claim. If you want an exemption, you don’t need to say that medical coverage is useless. Under the new decision, all you have to say is that providing health care coverage for your employees will make them less likely to rely on God. Boom: You’ve saved thousands or maybe millions of dollars in health care costs.
This result cannot be what Congress intended when it enacted RFRA. Exemptions so no one will have to personally violate their own religious beliefs are one thing. Exemptions dreamt up to drive a broader set of social-religious objectives are another. The appellate courts and, ultimately, the Supreme Court are going to have to set some limits to RFRA exemptions eventually. The Braidwood case would be a good place to start.