Neither the First Amendment Nor RFRA Enacted Mr. Robert Nozick’s Anarchy, State and Utopia

Today, let us go to the comments section to address some terrible conservertarian arguments from Mr. David Nieporent. Objecting to my argument that the contraceptive mandate doesn’t violate RFRA, he first demonstrates a fundamental misunderstanding of both my argument and the dissent:

It is unclear what makes Harry Edwards, or Scott Lemieux, an expert on the religious beliefs of Francis and Philip Gilardi. If you want to argue — and of course you do — that you don’t care about their religious beliefs, that’s one thing. If you want to argue that the federal government has a compelling interest in enforcing the contraceptive mandate notwithstanding their religious beliefs, and that there’s no less restrictive means of accomplishing its goals, such that the mandate should survive the RFRA, that’s one thing. (Although completely unsupportable, empirically.) But your claim, and Edwards’, that it doesn’t really violate their religious beliefs at all because it doesn’t require that they themselves use contraception, is ludicrous.

Of course, neither Edwards nor I are arguing that the mandate doesn’t burden the Gilardis “at all.” I agree that on the question of whether there is any conflict between religious practice and a statute, the courts should be deferential to an individual’s characterization of their beliefs. The legal standard, however, is not whether there is “any” conflict. It’s whether there is a substantial conflict. Courts do not have to be deferential on this question, and indeed since the finding of a substantial burden triggers the rare use of heightened scrutiny they can’t be deferential.  And for the reasons Edwards explains, this is pretty much the definition of a de minimis burden: the Gilardis are not required to use contraception, required to promote the use of contraception, or denied the right to publicly oppose the use of contraception. Being required to offer insurance plans that cover contraception may constitute a burden, but it’s not the “substantial” one Sherbert requires. In Sherbert and Yoder, there was a clear, direct burden involved, not an incidental one.

The idea that an irrefutable bare assertion of conflict with religious belief, no matter how trivial, is sufficient to make any state action subject to strict scrutiny is absurd. It’s an obviously unworkable standard, it’s not what the Court said in Sherbert, and it’s not the policy enacted by Congress, which also requires a “substantial” burden. The backdoor attempt to subject all regulations to strict scrutiny does, however, show what’s going on here: this case is about opposition to the ACA, not religious freedom. It’s not a coincidence that the author of this opinion also believes that some unspecified parts of the Constitution require the protection of “cowboy capitalism” against the “democratic process.” The contraceptive mandate might well violate the imaginary “cowboy capitalism” clause of the Constitution. It does not, however, violate either the 1st Amendment of the real Constitution or the Religious Freedom Restoration Act.

Responding to my point that upholding the argument would actually result in a net diminution of religious freedom because many employees will be denied a statutory right base on religious beliefs they don’t share, we get a world-class terrible analogy:

Me not serving pork chops to my employees in the company cafeteria — solely on religious grounds — does not impose my religious beliefs on them. They’re free to go eat pork chops; they’re just not free to get them from me.

If the government then passes a law that says that all employers with company cafeterias must serve pork chops to employees, and I object on religious grounds, that’s still not imposing my religious beliefs on them. They’re still free to go eat pork chops.

The analogy is howlingly inapt for a number of reasons. To be comparable, pork chops would have to have such clear and unique health benefits, especially for women, that they are often prescribed by doctors. Employers would have to receive a substantial taxpayer subsidy to pay employees in food vouchers, which can be used to purchase pork, rather than wages. The employer would then have to prevent employees from using the vouchers to purchase pork — not only at the company cafeteria, but from a third party — and deduct the typical amount used to purchase pork from the voucher, while keeping the tax subsidy and not providing the employee any additional compensation. Now that the analogy actually resembles the facts of the case, we can see that 1)the interposition of the religious beliefs of the employers between the government and the employees leaves the employees clearly worse off, even if they remain free to purchase pork with their remaining wages, and 2)the burden on the religious practices of the employer — which boils down to the distinction between employees doing something with wages in the form or insurance or ordinary wages — has a ways to go to rise to the level of being “trivial.”

The analogy does, however, do a pretty good job of self-refutation — The Gilardis aren’t being forced to eat pork chops. Their claim is like the lone cashier in the company cafeteria arguing that she has a statutory right to refuse to ring up purchases that involve pork while still keeping her job at full wages. It is, in other words, transparently frivolous, and no conservative would be defending the Gallardis’ claim if it was directed against a policy they liked.