I'm not talking about whether something is a substantial burden on the exercise of religion (and the test involves a burden on the "exercise of religion," not "religious liberty"). The line I'm referring to is the one which defines, to quote Alito, "the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another." The Court doesn't have to accept at face value a claimed burden on religious exercise, and has refused to do so
in the past. But the courts will not take upon themselves the task of determining, for instance, at what point the Bible
really makes one complicit in sin for an otherwise innocent act.
I don't think it would take long for the courts to dismiss any lawsuit seeking to use the RFRA (or a state-law variant, such as several states have) to prevent a state from recognizing same-sex marriage. The mere fact of state recognition is not a substantial burden on anyone's exercise of religion.
The Court has addressed this question in
United States v. Lee. Alito discusses that case in some detail in
Hobby Lobby:
I doubt this figure would stand up to scrutiny, but I'm writing this part of my post after what comes before and what follows, and feel it's long enough. I may revisit this later.
I'm having a hard time not viewing that dissent as blatant demagoguery.
Here's the
order in
Little Sisters of the Poor from January, from which no justice dissented:
Here's the
order in
Wheaton College, just issued:
These orders are substantively identical.
Note also Sotomayor's disingenuous characterization of what
Hobby Lobby had to say about the non-profit accommodation. Here's what the Court in
Hobby Lobby had to say on that point:
Here's Ginsburg in dissent in
Hobby Lobby, joined by Sotomayor, Kagan, and Breyer, recognizing that the Court doesn't say whether the accommodation would suffice under the RFRA:
Yet, in her dissent from the
Wheaton College order, Sotomayor writes:
Ask yourself: from what "position" is the Court now "retreating"? Is it retreating from the position that it isn't deciding "whether an approach of this type complies with RFRA for purposes of all religious claims"? Of course not. Because its order "should not be construed as an expression of the Court's views on the merits," this leaves the question of whether the accommodation can survive an RFRA challenge undecided,
just as it was before this order. Sotomayor is relying on the ignorance of her readers (and the complicity of partisan media in maintaining that ignorance) to stoke the election-year flames of the "war on women."
But, ignoring Sotomayor's dissent, is this order an extension of
Hobby Lobby? Does it show that the holding in
Hobby Lobby is broader than it was claimed to be? No. It's an injunctive order designed to preserve the
status quo ante until the claims can be fully adjudicated. Nor is it an order pitting "religious freedoms" against "women's rights," as the NYT so ignorantly claimed. The order says this: Wheaton College doesn't have to use
EBSA Form 700, but can notify HHS that it qualifies for the accommodation in any form of written notice.
That's it.
