The situation in Rowan County, Kentucky as well as the recent 10th Circuit dissental in the contraception mandate litigation, has highlighted a question concerning RFRA that I do not think the Supreme Court has ever addressed squarely: is the inquiry objective or subjective? Let’s start with the contraceptive mandate. Under the HHS accommodation, religious organizations (such as the Little Sisters of the Poor, whom I filed a brief in support of) claim that they would be complicit in sin, because they are now in a contractual relationship with insurers that cover contraceptives. (Oversimplifying). The government counters that under ERISA, they are not in a relationship with the insurers, and any burden is de minimis. (Also oversimplifying). The government offers an objective perspective–as a matter of law, there is no legal relationship–as the government pays for the entire cost–so there cannot be a burden. The Little Sisters take a subjective position–under their view of the arrangement, by signing the form, they are complicit in sinful activities. A court concluding that the Little Sisters are wrong about the legal arrangement doesn’t in any way challenge what they see as a substantial burden.
Consider Judge Hartz’s dissental from the 10th Circuit:
I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs).
The panel decision, and all other courts of appeals to confront this issue, take a decidedly objective analysis. The dissental would consider it from the perspective of those who assert that their religious liberty is being burdened–regardless of how bizarre their views may seem.
Next, let’s consider the current kerfuffle over the incarcerated clerk in Kentucky (alliteration!). First, read Marty Lederman’s cogent and comprehensive analysis of the case–it is the best item I’ve seen on the topic. Grossly oversimplifying, Kim Davis argues that she would be complicit in sin if she, or anyone under her supervision, issues a marriage license to a same-sex couple with her name on it. Marty explains (correctly in my opinion) that under Kentucky law, she is wrong, and that a deputy clerk is eligible to issue the marriage license. Therefore, if her deputy issues the license without Davis’s name on it, there can’t possibly be a burden to Davis, because she is not legally responsible for it under Kentucky law. Her name on the certificate has no legal significance. That’s the objective perspective. But under the subjective perspective, Davis still fees complicit. Nothing any judge could conceivably tell her will change how she feels. A court concluding that Davis is wrong about the law–and Judge Bunning professed confusion about whether licenses without her name would be valid–does not in any way impact what Davis views as a burden. If the question is viewed purely legally from an objective perspective, then there is no burden. But if it becomes a mixed question from the subjective perspective, then there is a burden. This is not to say that the burden is substantial, or that least restrictive means exist under the state RFRA. Rather, how you frame the inquiry entirely changes the analysis.
To the best of my knowledge, the Supreme Court has never held that the inquiry under RFRA is subjective or objective. The question in Hobby Lobby was unnecessary because the government did not challenge the sincerity of the beliefs of Hobby Lobby, and also, there was no legal question–the mandate forced Hobby Lobby to purchase the contraceptives. This issue will be in play in the Little Sisters, as the parties fight over how best to understand the mandate–from an objective or subjective perspective.