On the surface, the court’s decision, under the Religious Freedom Restoration Act (RFRA), appears 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 decision would exempt an employer who refused to provide any health care coverage of any kind on the grounds that medical insurance encourages people to rely on medical science rather than religious belief in programming. their lives. To see how important this case is, you have to go back to 2014. In Hobby Lobby, the Christian employer claimed that its religious freedom was infringed upon by providing contraception insurance. And Hobby Lobby explained that it considered contraception religiously wrong. Instead, in the new case, Braidwood Management Inc. made a much less direct argument. She claimed that her religious practice was significantly burdened because the provision of PreP medication “encourages 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 drug, any more than Hobby Lobby said that it was wrong to use contraception. He said, rather, that providing insurance for it would “encourage” behavior they believe violates the Bible. The district court accepted this extremely broad claim. The result is that, under the new ruling, anyone who wants to avoid almost any provision of federal law could say that obeying the law would allow behavior that their religion disapproves of. The Department of Health and Human Services appears to have grasped the enormous implications of Braidwood’s broad assertion of the right to opt out. In response, HHS argued that Braidwood’s claim was based on an “empirical” claim, namely that these drugs “facilitate” gay and extramarital sex. Accordingly, HHS reasoned, Braidwood would have to prove his claim based on facts about the world, not simply assert it without providing any evidence. The court flatly rejected HHS’s position. “The defendants [HHS] they improperly call into question the correctness” of Braidwood’s beliefs, the court wrote, “when courts can only test the sincerity of those beliefs.” [Emphasis original.] In other words, it doesn’t matter if the claim is true. all that matters is that Braidwood believes it. Under this logic, once Braidwood or anyone else seeking a religious exemption asserts a sincere belief that something (anything!) impinges on his religious belief, that’s the end of the story. The courts must accept what the party says. In support, the court cited a concurring opinion by Justice Samuel Alito in the 2020 case involving Little Sisters of the Poor. In that case, the nuns objected on religious liberty grounds to an exemption from providing contraceptive insurance that HHS had already provided. Alito wrote that if an employer “has a sincerely held religious belief that compliance with the [law] makes it complicit” in the conduct it repudiates, “then RFRA requires that the conviction be upheld. The majority of the court in the Little Sisters case, by Justice Clarence Thomas, did not address the question of whether the nuns’ claim was too circumstantial. It is understandable that courts do not want to challenge the logic of people’s affirmed religious beliefs. After all, for many people, religion is a matter of faith. and many forms of faith are and are intended to be outside of rational reason. As I have said before, questioning people under oath about their religious beliefs is very much like the Inquisition. From this perspective, courts should always uphold any sincere claim of religious belief, no matter how much it may depend on factual claims about the real world that are unfounded or even false. And although the law technically requires that the honesty of the adversary’s beliefs be considered, in practice, courts almost always uphold their honesty as well. The long-term consequences of accepting all asserted religious freedom claims, however reasonable they may be, is that there is no reasonable standing for the valid religious freedom claims that can be made about religious exemptions from federal law. If you can object to a 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 it should opt out of providing any medical coverage under the Affordable Care Act because it believes that medical insurance makes it easier for people to rely on science rather than 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 remember that under RFRA, anyone can make any religious claim. If you want an exception, you don’t have to say the medical coverage is worthless. According to the new ruling, 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 that no one has to personally violate their religious beliefs is one thing. The exceptions we dream of leading to a broader set of socio-religious goals are another. Appellate courts and, ultimately, the Supreme Court will have to place some limits on RFRA exemptions eventually. The Braidwood case would be a good place to start. More from the writers at Bloomberg Opinion: • Right-wing parties sell out across Europe too: Pankaj Mishra • Midterms are now even harder to predict: Jonathan Bernstein • Hints at Russia’s Future in South Africa’s Sanctions Past: Clara Ferreira Marques This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. Noah Feldman is a columnist for Bloomberg Opinion. A professor of law at Harvard University, he is the author, most recently, of The Broken Constitution: Lincoln, Slavery, and the Refounding of America. More stories like this are available at bloomberg.com/opinion
