The long march of religious freedom exemptions is accelerating. People who brought you contraceptive care exemptions and exemptions from COVID rules and vaccines have now switched to HIV drug insurance. Last week, a federal district court ruled that a Christian employer was entitled to an exemption from the requirement that all insurance plans cover pre-exposure prophylaxis (PreP) drugs that prevent the spread of the virus. HIV.
Superficially, the court’s decision, under the Restoration of Religious Freedom Act (RFRA), appears to resemble the Affordable Care Act exemption from mandatory contraceptive coverage that the Supreme Court granted in the United States. Hobby Lobby case from 2014. But on a deeper level, the new decision goes much further than the Hobby Lobby decision.
If upheld by the Court of Appeals and the Supreme Court, the Texas ruling would exempt an employer who refuses to provide health care coverage of any kind on the grounds that medical insurance encourages people to rely on medical science, not religious faith, to plan 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 that his religious freedom was encumbered by providing insurance for contraception. And Hobby Lobby explained that he considers contraception a religious error.
In contrast, in the new case, Braidwood Management Inc. presented a much less direct argument. He claimed his religious exercise was significantly burdened because the provision of PreP drugs “encourages homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.”
In other words, Braidwood did not say it was inherently religiously wrong to use the drug, the same way Hobby Lobby said it was wrong to use contraception. Rather, he said providing assurance for it would “encourage” behavior they believe violates the Bible. The district court accepted this extraordinarily broad claim.
The upshot is that, under the new ruling, anyone who wishes to avoid almost any provision of federal law could say that abiding by the law would permit behavior that their religion disfavors.
The Department of Health and Human Services seems to have understood the enormous implications of Braidwood’s general assertion of a right to exemption. In response, HHS argued that Braidwood’s claim was based on an “empirical” claim that these drugs “facilitate” same-sex and extramarital sex. Therefore, according to HHS reasoning, Braidwood should prove his factual assertion to the world, not just state it without providing any evidence.
The court strongly rejected HHS’ position. “Defendants [HHS] improperly challenge the accuracy “of Braidwood’s beliefs, the court wrote, “when courts can only test the sincerity of those beliefs”. In other words, it doesn’t matter if the assertion is true; everything what matters is that Braidwood believes in it. By this logic, once Braidwood, or anyone else seeking an exemption on religious grounds, asserts his sincere belief that something (anything!) weighs on his religious belief, that’s the end of the story.The courts have to accept whatever the party says.
In support, the court cited a concurring opinion from Judge Samuel Alito in the 2020 case involving the Little Sisters of the Poor. In that case, the nuns objected on religious liberty grounds to the exemption from providing contraceptive insurance that HHS had already provided. Alito wrote that if an employer “has a sincere religious belief that respect for [law] makes him complicit” in behavior he rejects, “so RFRA demands that the creed be honored.” The court’s majority opinion in the Little Sisters case, by Judge Clarence Thomas, did not address the issue of whether the nuns’ claim was too indirect.
It is understandable that the courts are unwilling 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 rational logic. As I said before, questioning people under oath about their religious beliefs is too much like the Inquisition.
Seen in this light, courts should always defer to any sincere assertion of religious belief, no matter how dependent it may be on factual assertions about the real world that are unsubstantiated or even false. And while the law technically requires consideration of the sincerity of the objector’s belief, in practice courts almost invariably defer to their sincerity as well.
The long-term consequences of accepting all asserted religious liberty claims, no matter how attenuated logic, is that there is no logical stop to what valid religious liberty claims can be made for religious exemptions from federal law. If you can put your objection in one sentence – maybe even if you can’t because it’s too mystical – then the law doesn’t apply to you.
Indeed, it is easy to imagine an employer saying that they should be exempt from providing any kind of medical coverage under the Affordable Care Act, because they believe that having insurance medicine helps people trust science instead of divine faith when it comes to their health. It would be an easy claim for any denomination that denies the validity of Western medicine, as Christian Science clearly did in the past.
But remember, under RFRA, anyone can make any religious claim. If you want an exemption, you don’t have to say that medical coverage is useless. Under the new ruling, all you have to say is that providing health care coverage to your employees will make them less likely to rely on God. Boom: You’ve saved thousands, if not millions of dollars in health care costs.
This outcome cannot be what Congress intended when it enacted the RFRA. Exemptions so that no one has to personally violate their own religious beliefs are one thing. Exemptions devised to drive a broader set of socio-religious goals are another. Appeals courts and ultimately the Supreme Court will eventually have to set some limits on RFRA exemptions. The Braidwood case would be a good place to start.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is the author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America”.