The Politics and the Law of Accommodation

Now that the President will be with us for another 4 years, I got to thinking about the politics of the promised accommodation relating to the HHS Mandate.  Recall that HHS has indicated that some form of accommodation or modification to the existing regulation for objecting Catholic institutions would be forthcoming after the election.  Some courts have relied on the prospect of that accommodation to dismiss law suits, without prejudice, as being unripe.

Of course no one yet knows what the nature of the accommodation will be.  So all of this is pure speculation, and may well turn out to be incorrect.  But I expect the accommodation to be narrow.  The reasons are simple from a political point of view.  First, in his second term, the President does not need to placate the Church or Catholics who do not agree with him about this issue for political reasons.  The House may stand in his way as to certain policy objectives, but this is not one of them.  He will not run for President again.  Second, the President can quite rightly point to the fact that he won the Catholic vote in this election.  A majority of Catholics that voted did not feel that the issues of religious liberty raised by the Mandate were important enough to vote against the President (and that’s putting it generously — some or many may not have cared at all about these issues; some may not even have known about them).  And the President can and probably will use that triumph as a political signal that he can proceed more or less as he likes with his policy.  Catholics may or may not care about the Mandate, but a majority of them don’t care that much — for those that voted, it is not a central concern for them.

This raises some interesting questions about the relationship of these political indicators to the Religious Freedom Restoration Act legal test: laws which substantially burden religious belief or practice and which are not supported by a compelling interest whose means of achievement is the least restrictive are illegal.  One key feature of the test is that courts are not to inquire into the centrality or importance of the belief or practice within the overall religious system.

One of the reasons for RFRA was precisely to short-circuit the sorts of new political arguments that the Administration might make on behalf of the Mandate.  For example, suppose the Administration adds to its arsenal of legal arguments in favor of the Mandate something like the following: ‘Most Catholics don’t care much at all about this issue, for if they did, they would have voted against the President.  But they voted for the President.  The burden on them therefore must not be substantial at all.’  It seems to me that this is an argument from centrality.  And it strikes me as problematic.

In the first place, it remains difficult to assess precisely how important or central the burden is for the Catholics that voted for the President notwithstanding the Mandate.  They may have voted for him with reservations of various kinds, and we would need to know how to measure the weight of those reservations to determine whether that weight rises to the level of substantiality.  But of course we cannot do that.  In the second place, RFRA’s very injunction not to consider centrality speaks to an incongruity between the political and legal realms when it comes to accommodations on grounds of religious conscience.  Part of the point of RFRA had to do with a concern about the majoritarianism suggested by Employment Division v. Smith — and specifically about the question of how to gauge whether an accommodation was warranted.  This explains Congress’s concerns about inquiries into the centrality of a belief.  And this is why arguments from current political realities are an uncomfortable fit when it comes to the law of accommodation.

Be that as it may, as I have indicated before, I am perplexed by the substantial burden test.  There are only a few ways I can think of that are available for courts to assess the gravity of a burden.  And evaluating the centrality or importance of a belief seems like a natural — indeed, perhaps an inevitable — criterion.

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