When Free Exercise Is a Burden: Protecting 'Third Parties' in Religious Accommodation Law

Abstract

During the 2014 U.S. Supreme Court term, the Court considered two challenges to the contraceptive coverage requirement of the Affordable Care Act. These cases attracted enormous attention, and brought a new urgency to the principle that requests for religious accommodations should be weighed against any burdens such accommodations would impose on "third parties," who are more accurately termed "existing rights-holders." However, neither courts nor scholars have provided a consistent or principled way of thinking through how to evaluate such burdens and how to weigh them against free exercise rights. This Article takes up that challenge, using the example of the contraceptive coverage cases to demonstrate the ways in which existing doctrine fails to do justice to the impact of accommodations on existing rights-holders. Having identified the flaws in current thinking, this Article proposes a novel theoretical framework for performing this balancing, focusing on equality-implicating burdens on both religious objectors and existing rights-holders. It also provides guidance on how to use existing doctrine to vindicate these concerns, drawing particular attention to the ways in which understanding the interests of existing rights-holders would change our understanding of when a law is generally applicable, what constitutes a compelling state interest, and how to understand when a law is narrowly tailored to meet both practical and expressive goals.This Article provides insight into the issues before the Supreme Court in a way that will remain relevant regardless of the Court’s ultimate holdings in these cases, and argues that the contraceptive-coverage requirement, properly understood, withstands scrutiny under both the Constitution and the Religious Freedom Restoration Act.

Keywords: contraceptive coverage mandate, contraceptive coverage requirement, Affordable Care Act, contraception, birth control, First Amendment, free exercise, religious accommodations