Late on New Year’s Eve, Justice Sonia Sotomayor handed down a very brief order holding that several religious groups could temporarily ignore the provisions of the Affordable Care Act relating to birth control. The order, which offers no rationale and appears to be nothing more than a routine action delaying a resolution of the case until the Justice Department had an opportunity to present its side of the case to the Court today, immediately became one of the most overblown stories of 2014. The order offers no hint about how Justice Sotomayor views the merits of this case, and it applies only to the few religious organizations before the court in this case. The overwhelming majority of American employers remain subject to the requirement that their employee health plans cover contraception.
Yet, while the significance of Sotomayor’s New Year’s Eve order should not be overstated, there’s an important legal issue lurking in this case that could give religious employers sweeping and unprecedented immunity from the law.
Unlike the Hobby Lobby case, where a business owned by people with religious objections to birth control is suing to avoid having to provide contraceptive coverage to their employees, there is no question in the Colorado case that the plaintiffs do not have to provide birth control to anyone. Every single one of the plaintiffs in the Colorado case qualify for a religious exemption to the birth control rules — indeed, the federal government admits as much.
In order to invoke that exemption, however, the plaintiffs need to fill out a form. That’s what the plaintiffs object to in this case. Not that they might be forced to provide medical care that goes against their personal beliefs, but that they have to inform the government that they wish to invoke their legal right by first filling out a form.
The reason why it matters that the plaintiffs in the case are claiming that such an insignificant requirement burdens their religious faith is because federal religious liberty law provides that “[g]overnment shall not substantially burden a person’s exercise of religion” except when a specific exemption applies. So a person with a religious objection the law cannot immunize themselves from following it merely because they don’t like the law, they have to show that the law imposes a burden on their faith that is substantial. That is why these plaintiffs should have no case. Being required to inform the government that you are invoking your legal rights isn’t a substantial burden. It’s barely a burden at all.
Should the Supreme Court side with the plaintiffs in this Colorado case, it will require the Court to effectively write the “substantially burden” requirement out of the law, a holding which could permit some truly absurd lawsuits. When the state of North Dakota considered a ballot initiative that would have enacted a similar rule in that state, we quipped that “even the most minor inconveniences to religious practices would be suspect under the initiative. A person who is running late to church could claim it is illegal to make them obey traffic lights.”
Combine this with the extreme deference some lower courts have shown to people with religious objections to the law, and the result is a radical shift away from requiring people with religious objections to the law to actually comply with it.