Hobby Lobby and Substantial Burdens

Ian Millhiser of ThinkProgress has a post up with the sensational headline “Judge: Hobby Lobby Decision Means Polygamous Sect Member Can Refuse to Testify in Child Labor Case.” Milhiser explicitly makes clear repeatedly in the body of his post that his reference to Hobby Lobby is specifically a reference to the Supreme Court’s decision in that case, and thus not a reference to the lower court opinions in Hobby Lobby.

In the case at issue, Perez v. Paragon Contractors, the federal government is seeking to compel the testimony of a member of the infamous Warren Jeffs-led FLDS cult in connection with an investigation into possible child labor violations by the cult. The cult member, a man named Vernon Steed, is refusing to testify on the grounds that testifying would violate a supposedly sincere religious belief against discussing the internal affairs of the cult.

Although Steed’s claim of a right to an exemption was made under the First Amendment’s free exercise clause, the judge correctly recognized that the free exercise clause, as interpreted by the Supreme Court for almost 25 years, would not protect Steed, but that instead his exemption claim was really a claim under the Religious Freedom Restoration Act (“RFRA”). The judge then goes on to apply the elements that RFRA requires for an exemption claim to be protected. Specifically, RFRA requires that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless it demonstrates that “application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Here, the judge found against the government and for Steed’s exemption claim, concluding that (a) Steed’s religious belief was sincerely held (as a practical matter, the sincerity of a religious belief has long been something that courts are unwilling to question); (b) compelling Steed’s testimony would be a substantial burden on that belief; and (c) regardless of whether it possesses a compelling interest, the government had not yet shown that it lacks less restrictive means of obtaining the information it sought from Steed through other purported witnesses. The judge made clear that he was leaving the door open for the government to show that the other potential witnesses lacked Steed’s knowledge of relevant facts or that it was otherwise unable to obtain the evidence it needed from those other potential witnesses.[FN1]

The opinion itself, it should be noted, is quite brief, only 9 pages, with the nuts and bolts legal analysis taking up only about 3 and a half pages.  Regardless, it certainly seems rather outrageous on its face that RFRA could be used to derail or at least impede a government investigation into abhorrent child labor practices, and indeed, I think the judge got this wrong.  Whether or not the government could potentially obtain enough information from people other than Steed to indict the FLDS and some of its members, this is purely a hypothetical and, what’s more, the inherent nature of witness testimony is that it’s both unique and cumulative – every witness’ account in most circumstances will be slightly different, but at the same time, where those accounts are similar or overlap, they become significantly more persuasive and reliable.  So even if testimony were available from others, it’s unlikely that the government would be able to achieve its stated objective of completing a full investigation into the FLDS’ child labor practices without Steed’s testimony as well.

This, however, is not the part of the opinion that has Milhiser outraged, though Milhiser does seem to disagree (correctly, IMHO) with this portion of the opinion as well.  Instead, the portion of the opinion that Milhiser focuses on is the portion in which the judge asserts that compelling Steed’s testimony would be a substantial burden on Steed’s exercise of religion.

According to Milhiser:

Before Hobby Lobby, it’s unlikely that Steed’s claim would prevail. Although a federal law offers fairly robust protections for religious liberty, this law only applies when the federal government “substantially burden[s] a person’s exercise of religion.” Hobby Lobby, however, largely wrote the word “substantially” out of this law.” The Hobby Lobby plaintiffs, Justice Samuel Alito wrote for the Court, “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”

This is entirely incorrect. Don’t get me wrong, I think Justice Alito’s application of the “substantial burden” element of RFRA in Hobby Lobby was incorrect, as he failed to recognize the similarities between health insurance and other forms of compensation and also failed to recognize that nothing would have prevent Hobby Lobby from prohibiting its employees from actually utilizing certain parts of their health insurance coverage. And there is no doubt that a good argument, albeit one with which I’d disagree, can be made that Hobby Lobby altered concepts of corporate law. But it’s just flat out wrong to claim that Alito’s Hobby Lobby opinion actually altered the substantial burden test and that this alteration was the but-for cause of the decision to allow Steed to refuse to testify.

Instead, the criticism of Alito’s opinion on this point should be, and usually to my knowledge is, that it doesn’t make clear what test, exactly, it is applying to determine whether a substantial burden exists, such that it’s basically useless as guidance to lower courts on that issue. Indeed, the court in Paragon doesn’t even cite to Alito’s opinion for its analysis. Instead, it quotes from the 10th Circuit’s earlier opinion in Hobby Lobby for the substantial burden test. That earlier opinion, in turn, relies wholly on a direct quote from a 2010 10th Circuit case, Abdulhaseeb v. Calbone, 600 F. 3d 1301 – indeed, the language relied on by the judge in Paragon for the substantial burden test ultimately comes directly from Abdulhaseeb, stating that a substantial burden occurs where the government:

(1) requires participation in an activity prohibited by a sincerely held religious belief, or (2) prevents participation in conduct motivated by a sincerely held religious belief, or (3) places substantial pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief…

More to the point, as this is the element of the test on which the Paragon judge explicitly relied on, the idea that a “substantial burden” on religious exercise includes a situation where there is “substantial pressure . . . to engage in conduct contrary to a sincerely held religious belief” is an idea that has been an accepted doctrine in American law for over thirty years – the Supreme Court itself held at least as early as 1981 that a “substantial burden” of a religious exercise occurs where the government “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs…” Thomas v. Review Bd., 450 U.S. 707. So far as I can tell, this notion of what constitutes a “substantial burden” has been consistently applied and accepted as the appropriate standard ever since. See, e.g.,, Spratt v. Rhode Island Dept. of Corr., 482 F.3d 33 (1st Cir. 2007); U.S. v. Amer 110 F.3d 873 (2d Cir. 1997); Washington v. Klem, 497 F. 3d 272 (3d Cir. 2007); Int’l Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d 1059 (9th Cir. 2011).

Under this standard, wherein there is a “substantial burden” whenever the government places “substantial pressure” on an adherent to violate a religious belief, it’s essentially impossible to argue that forcing Steed to testify is anything other than a “substantial burden.” Once we’ve conceded, as we must [FN2], that Steed’s purported religious belief against discussing internal cult affairs is sincere, then requiring him to discuss those affairs is indisputably a violation of his religious beliefs, and the only question that remains is whether the government is placing substantial pressure on him to do so. In this case, the “pressure” is a threat of being held in contempt of court, ie, the threat of Steed being sent to jail. It’s frankly impossible to imagine a scenario in which the direct threat of jail time is anything other than “substantial pressure.”

Simply put, whatever Hobby Lobby’s faults or benefits, it’s woefully incorrect to claim that it even figuratively wrote the word “substantially” out of RFRA, much less did so in a way that enabled the judge in Paragon to rule against the government. Indeed, the language Milheiser quotes from Alito’s opinion is itself almost a verbatim application of other language in the aforementioned Thomas decision.
 

FN1 – There may be another dynamic at play here.  It should seem a bit odd that the government is fighting so hard to compel this particular witness to testify – it’s been 9 months now – before it seeks to compel the testimony of others, apparently including outside contractors, who seem likely to be able to testify on the same topics.  This is mostly an educated guess, but it seems possible they’re hoping to catch him in a lie so they can threaten a false statements or perjury charge against him in order to get him to provide evidence against the cult on a lot more issues than just the child labor issue.

FN2 – Courts have almost never been willing to enquire into the sincerity of a religious belief and have just about always accepted an assertion of sincerity as true, with the only exceptions being where the asserted belief is so outlandish as to be worthy of outright dismissal. The reason for this is that inquiring into the sincerity of a religious belief would pose tons of First Amendment problems, not least of which being that it would place the courts in the role of arbiter of disputes about religious doctrine.

NOTE FOR COMMENTERS: Because of how discussions about the Hobby Lobby case have often gone around these parts, I respectfully ask that you limit your comments to the specific aspect of the case at issue here, and how it impacts other religious freedom claims. This is not the place to relitigate whether Hobby Lobby was properly decided overall. The issue I ask that you focus comments on specifically here is whether it, in fact, changed the “substantial burden” test in a way that makes it easier for plaintiffs to claim a burden is substantial.