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I suspect that the government lawyers who successfully defended the HHS contraceptives mandate against RFRA and Free Exercise claims in Conestoga Wood Specialties Corp. v. HHS really would have preferred to win on different grounds. That is because the basis for the Third Circuit’s decision is legally insubstantial. On an issue that will be decided by the Supreme Court, it would be better for the government to have won on a more defensible basis than the conclusion that a “for-profit, secular corporation” cannot “exercise religion.”

The dissenting opinion by Judge Jordan convincingly demonstrates that the majority’s ultimate conclusion is wrong and that its supporting reasoning is defective. Will Baude at Volokh Conspiracy and Marc DeGirolami at Mirror of Justice have also raised questions about the panel majority’s analysis. Over the next couple of weeks, I aim to provide additional critical commentary that elaborates on criticisms previously raised and offers new angles of analysis and criticism. While some of these criticisms will be based on arguments advanced in the amicus brief that I co-authored in Conestoga, I aim to expand beyond the targeted set of arguments advanced there.

For now, I will begin with Marc DeGirolami’s argument about the short shrift given RFRA in the panel majority’s analysis. The majority opinion states: “Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim.” DeGirolami argues that the court should not have simply assumed “that a term as used in the Constitution must mean exactly the same thing as a term used in a statute.”

DeGirolami is right that there cannot be a one-to-one relationship between RFRA and the Free Exercise Clause as interpreted by the Supreme Court. The purpose of RFRA was to replace the legal standard for evaluating Free Exercise claims adopted in Employment Division v. Smith, 494 U.S. 872 (1990). But given the stated intention of RFRA, there should be a close correspondence between the pre-Smith reach of the Free Exercise Clause and the reach of RFRA. One of the purposes declared in the legislation is “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(1).

If the panel majority’s analysis had started with RFRA instead of the Free Exercise Clause, it is less likely that its analysis would have led to the wrong conclusion. To begin with, there is more textual guidance in the U.S. Code. As DeGirolami points out, Congress has declared that the protected “exercise of religion” “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” That language suggests an expansive understanding of “exercise of religion,” and it invites further inquiry into how “exercise of religion” should be understood.

As I have previously argued in connection with the Third Circuit’s earlier mistaken decision on the contraceptives mandate, “a religiously based refusal to do something otherwise required by law is an ‘exercise of religion.'” Consider the facts of Sherbert v. Verner, 374 U.S. 398 (1963), one of the two cases singled out in RFRA. The exercise of religion in that case was Adele Sherbert’s religion-based refusal to work on Saturday. See id. at 403 (describing the relevant conduct as “appellant’s conscientious objection to Saturday work”).

A corporation can engage in this kind of “exercise of religion” if a corporation can refuse, for religious reasons, to do something otherwise required by law. And it plainly can. Suppose a federal law requiring fast-food restaurants located near interstate highways to be open seven days a week. Chick-fil-A’s religion-based refusal to operate on Sundays in violation of this law would surely be an “exercise of religion” akin to Ms. Sherbert’s refusal to work on Saturdays.

The profit-making character of the corporation does not change the analysis of whether the corporation can make a religion-based decision. Chick-fil-A is a profit-making business. Yet it foregoes the profits it would otherwise make through Sunday operation because its religion-based corporate policy controls the manner in which it seeks to make a profit. Similarly, Ms. Sherbert was working for money (and later seeking unemployment benefits). Yet her religious obligation not to work on Saturday conditioned the manner in which she could go about earning money.

The panel majority opinion simply does not address this line of argument. One way in which its failure to address RFRA independently may have contributed to this failure to analyze what counts as a protected “exercise of religion” emerges from a word search for that phrase. It does not appear until page 28, after the majority has already concluded its Free Exercise analysis. In the course of its Free Exercise analysis, the Third Circuit panel majority does not ask whether a corporation can engage in the “exercise of religion” (RFRA’s words), but rather whether corporations can “engage in religious exercise” [11] or whether corporations can “exercise religion” [15]. The wording shift is subtle and almost certainly unintentional, but it nevertheless tends to lead analysis in the wrong direction. For the panel majority’s rephrasing suggests asking whether a corporation can engage in religious exercises like prayer, worship, participation in sacraments, and so on. But that is not what the governing law requires.

One might try to distinguish the exercise of religion in Sherbert on the ground that the underlying basis of the refusal to work on Saturday was so that Ms. Sherbert could engage in the religious exercise of attending worship services. The problem with this distinction is that it is sufficient for the religion-based refusal to be sincere and religion-based. It does not need to be tied to some other “religious exercise.” Consider Thomas v. Review Board, 450 U.S. 707 (1981). The exercise of religion in that case was Mr. Thomas’s refusal to participate in the production of turrets for military tanks. This refusal was based on Mr. Thomas’s beliefs as a Jehovah’s Witness. It did not matter that this religion-based refusal conditioned Mr. Thomas’s pursuit of money. The Supreme Court found it sufficient that “Thomas terminated his employment for religious reasons.” Similarly, the Third Circuit should have found it sufficient that Conestoga objects to compliance with the mandate for religious reasons. That religion-based objection is an “exercise of religion” within the compass of both RFRA and the Free Exercise Clause.

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This thoughtful essay by William Baude in The Wilson Quarterly is eminently worth reading.

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