Since the U.S. Supreme Court decision in Burwell v. Hobby Lobby Stores, 573 U.S. 22 (2014), which held that the Religious Freedom Restoration Act of 1993 (RFRA) can be applied to closely held corporations whose owners have sincerely held religious beliefs, religious conservatives have been pressing for a greater acceptance of their view that any kind of "sincere" religious belief should exempt them from conduct that they consider to interfere with their sincere religious belief. The focus of this conflict is primarily contraceptive coverage in employer insurance plans, abortion and gay marriage.

RFRA prohibits the government from substantially burdening a person's exercise of religion unless the government demonstrates that the application of that burden to that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. RFRA covers "any exercise of religion, whether or not compelled by, or central to a system of religious beliefs." 42 U.S.C. §2000cc-5(7)(A). See William M. Pinzler, Hobby Lobby and Piercing the Corporate Veil, NYLJ, Sept. 4, 2014. To date, the determination of what constitutes a substantial burden of a person's exercise of religion has been fluid, driven by the facts in each case. That fluidity is under direct challenge this term in the Supreme Court.

The Supreme Court has scheduled argument this term in Trump v. Pennsylvania, 930 F.3d 543 No. 19-454 and its companion case, Little Sisters of the Poor v. Pennsylvania, No. 19-431. One of the questions presented is whether the Departments of Health and Human Services, Labor and Treasury have the statutory authority under the Affordable Care Act (ACA) and RFRA to expand the so-called conscience mandate exemption to the contraception-coverage mandate. (The other questions concerned the agencies' ability to issue final rules without notice for public comment and whether the District Court could issue a nationwide injunction.)

Following Hobby Lobby, the agencies promulgated rules consistent with the court's decision. The rules were challenged; there was a spilt in the circuits, but before the appointment of Justice Brett Kavanagh, an equally divided court vacated all of the judgments and remanded the cases to their respective courts of appeals without resolving the underlying merits. Zubik v. Burwell, 136 S. Ct. 1557 (2016) (per curiam). There is no consensus on the contours of the "conscience mandate." The new administration decided to "reexamine" the mandate's exemption and accommodation scheme by issuing new "interim" regulations that give wide latitude to those with a "sincere religious belief." Pennsylvania sued to challenge these rules. The Little Sisters sued to defend the rules. While the appeals were pending, the agencies adopted final rules that expanded the existing religious exemption to cover nongovernmental plan sponsors and institutions of higher education that offer student health plans to the extent that those entities have what is described as "sincere religious objections to providing contraceptive coverage." The exemption includes all entities (except publicly traded companies) that have sincere "moral objections to such coverage." Both rules permit, but do not require, willing employers and insurers to offer plans that omit contraceptive coverage to individuals who have religious or moral objections to such coverage.

Relying on the broadest interpretation of their authority under RFRA and its reading of Hobby Lobby, the agencies concluded that even if RFRA does not "compel" the religious exemption, an expanded exemption rather than the existing accommodation is "the most appropriate administrative response to the substantial burden identified by the Supreme Court in Hobby Lobby." The Third Circuit concluded that the ACA itself confers no authority on the agencies to redress religious burdens which may be caused by the mandate. The court continued that the ACA confers no authority on the agencies to recognize conscience exceptions. This, the administration contends, places a substantial burden on religion and "threatens to impair the agencies' ability to address religious objections in other contexts."

Faced with what the agencies characterized as a substantial matter, the agencies chose to abandon the existing accommodation rule and replace it with an expanded religious exemption. The agencies now assert that if an employer objecting on religious grounds to providing certain contraceptives "sincerely believes" that the plan contravenes its religious belief, it should be permitted to not provide such coverage. The agencies went further and held that there was no means short of an exemption that would resolve "all religious objections."

The Third Circuit rejected this broad ruling of the mandate. It held that the accommodation does not impose a substantial burden on religion, holding that an employer's submission of the self-certification form to its insurer does not make the employer "complicit" in the providing of contraceptive coverage. 930 F.3d at 574-75.

At no point do the agencies provide any guideposts by which to judge "sincere beliefs." The states contend that the courts should undertake their own objective evaluation of the complainant's religious beliefs. The states insist that RFRA requires more than a "pro forma" or "judicial abdication" to an assertion of a complainant's religious beliefs. However, in the Supreme Court reply brief filed by the Solicitor General, it states that an independent assessment of a complainant's asserted religious belief is "truly incompatible" with a person's faith. It goes further to assert that "[c]ourts have no warrant to second-guess a plaintiff's own understanding of his or her professed faith, or to downplay particular tenets as ancillary to or inconsistent with what the courts perceive as the plaintiff's core beliefs." This represents a radical rewriting of the standards to be applied when judging a sincere belief and would require a total judicial abdication whenever a claim of sincere religious belief is proffered regardless of the context or the consequences of accepting the sincere religious belief assertion.

While an examination of a person's beliefs will surely present challenges to courts, there must be standards imposed on lower court judges or administrative agencies when evaluating "religious" claims. The free exercise of religion has been held to permit people to have the right to believe and profess whatever religious doctrine they desire. Emp't Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 877 (1990). If a government action substantially burdens a person's exercise of religion, the person is entitled to an exemption from the rule unless the government can demonstrate that the application of the burden is the least restrictive means of furthering a compelling governmental interest. Merely having religious practices is not sufficient. In Church of Lukumi Bablu Aye v. City of Hialeah, 508 U.S. 520 (1993), the court held that a municipal ordinance prohibiting ritual animal sacrifice, even if a central part of the petitioner's belief system, was enforceable.

For decades, the Supreme Court and the lower federal courts have consistently held that the courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim. See, e.g., Thomas v. Review Board, Indiana Employment Security Div., 450 U.S. 716; Presbyterian Church v. Hull Church, 393 U.S. 450; Jones v. Wolf, 443 U.S. 595, 602-06 (1979). In earlier cases, supra, petitioners were members of a church or sect, which had articulated principles or belief systems. In recent years, however, petitioners have proclaimed themselves to be devout Christians, but not necessarily to be members of a church or sect. Courts have had to address personal beliefs and not the practices or beliefs of a church or sect leaving them adrift to judge a belief in the absence of any articulated religious tenets.

Courts have often evaluated the sincerity of religious assertions. Conscientious objectors have long been subject to inquiries regarding the sincerity of their religious beliefs. See United States v. Seeger, 380 U.S. 163, 185 (1965). Religious claims have been reviewed and rejected in criminal cases. See, e.g., United States v. Quaintance, 608 F.3d 717, 718-19 (10th Cir. 2010). Courts are best able to examine the issue of "sincerity" where extrinsic evidence is evaluated and objective factors dominate the analysis. See Int'l Society for Krishna Consciousness v. Barber, 650 F.2d 430 (2d Cir. 1981). Regardless of this precedent the current administration wishes to cast the long history of evaluating the sincerity of religious belief because it now views that such an inquiry places a substantial burden on the complainant.

In all the recent cases, the petitioner's belief bears a striking similarity to the social agenda of the "religious right," birth control, abortion and gay marriage. These individuals seem to find one type (and only one type) of state-permitted conduct to be anathema to their religious beliefs. It is widely recognized that political beliefs, regardless of how strongly held, are not religious beliefs protected by the Free Exercise clause. In this case, what is the basis for the "religious" objection? Is it scripture based? If so, what chapter and verse are relied upon? It is claimed to be religiously based, but what is the religion? Are these objections religious, as opposed to political, and how does one objectively make this determination?

In order to accept what the administration is proposing, the court would have to accept that executive branch agencies can unilaterally disclaim a compelling government interest established by statute. Without any articulated basis the agencies disclaimed a compelling government interest in the contraceptive guarantee. The court would also have to accept the administration's claim that RFRA permits executive branch agencies to stop enforcing a federal law it determined to substantially burden religion rather than enforce the law through less restrictive means. A decision in favor of the administration would be without precedent. In fact, it directly contradicts Hobby Lobby.

Hobby Lobby held that it was the obligation of employers and insurers to balance the burdens on beneficiaries as well as non-beneficiaries and to find alternative means to assure that all interests to the extent possible are accommodated. In the current case, the administration's proposed remedy would eliminate contraceptive coverage, which is the antithesis of enforcing the guaranteed contraceptive coverage via "alternative means." The administration's effort to rewrite the way our courts interpret claims of freedom of religion should trouble anyone who cares about the role of religion in our society. Throughout America, there are many views about contraception and abortion. Almost all of them stem from a person's religious beliefs. A case-by-case analysis is compatible with accepted notions of freedom of religion. The application of a rigid rule that restricts a court's ability to inquire into a plaintiff's religious beliefs infringes on rather than promotes American's freedom of religion.

The Conscience Exemption

Since the U.S. Supreme Court decision in Burwell v. Hobby Lobby Stores, 573 U.S. 22 (2014), which held that the Religious Freedom Restoration Act of 1993 (RFRA) can be applied to closely held corporations whose owners have sincerely held religious beliefs, religious conservatives have been pressing for a greater acceptance of their view that any kind of "sincere" religious belief should exempt them from conduct that they consider to interfere with their sincere religious belief. The focus of this conflict is primarily contraceptive coverage in employer insurance plans, abortion and gay marriage.

RFRA prohibits the government from substantially burdening a person's exercise of religion unless the government demonstrates that the application of that burden to that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. RFRA covers "any exercise of religion, whether or not compelled by, or central to a system of religious beliefs." 42 U.S.C. §2000cc-5(7)(A). See William M. Pinzler, Hobby Lobby and Piercing the Corporate Veil, NYLJ, Sept. 4, 2014. To date, the determination of what constitutes a substantial burden of a person's exercise of religion has been fluid, driven by the facts in each case. That fluidity is under direct challenge this term in the Supreme Court.

The Supreme Court has scheduled argument this term in Trump v. Pennsylvania, 930 F.3d 543 No. 19-454 and its companion case, Little Sisters of the Poor v. Pennsylvania, No. 19-431. One of the questions presented is whether the Departments of Health and Human Services, Labor and Treasury have the statutory authority under the Affordable Care Act (ACA) and RFRA to expand the so-called conscience mandate exemption to the contraception-coverage mandate. (The other questions concerned the agencies' ability to issue final rules without notice for public comment and whether the District Court could issue a nationwide injunction

Following Hobby Lobby, the agencies promulgated rules consistent with the court's decision. The rules were challenged; there was a spilt in the circuits, but before the appointment of Justice Brett Kavanagh, an equally divided court vacated all of the judgments and remanded the cases to their respective courts of appeals without resolving the underlying merits. Zubik v. Burwell, 136 S. Ct. 1557 (2016) (per curiam). There is no consensus on the contours of the "conscience mandate." The new administration decided to "reexamine" the mandate's exemption and accommodation scheme by issuing new "interim" regulations that give wide latitude to those with a "sincere religious belief." Pennsylvania sued to challenge these rules. The Little Sisters sued to defend the rules. While the appeals were pending, the agencies adopted final rules that expanded the existing religious exemption to cover nongovernmental plan sponsors and institutions of higher education that offer student health plans to the extent that those entities have what is described as "sincere religious objections to providing contraceptive coverage." The exemption includes all entities (except publicly traded companies) that have sincere "moral objections to such coverage." Both rules permit, but do not require, willing employers and insurers to offer plans that omit contraceptive coverage to individuals who have religious or moral objections to such coverage.

Relying on the broadest interpretation of their authority under RFRA and its reading of Hobby Lobby, the agencies concluded that even if RFRA does not "compel" the religious exemption, an expanded exemption rather than the existing accommodation is "the most appropriate administrative response to the substantial burden identified by the Supreme Court in Hobby Lobby." The Third Circuit concluded that the ACA itself confers no authority on the agencies to redress religious burdens which may be caused by the mandate. The court continued that the ACA confers no authority on the agencies to recognize conscience exceptions. This, the administration contends, places a substantial burden on religion and "threatens to impair the agencies' ability to address religious objections in other contexts."

Faced with what the agencies characterized as a substantial matter, the agencies chose to abandon the existing accommodation rule and replace it with an expanded religious exemption. The agencies now assert that if an employer objecting on religious grounds to providing certain contraceptives "sincerely believes" that the plan contravenes its religious belief, it should be permitted to not provide such coverage. The agencies went further and held that there was no means short of an exemption that would resolve "all religious objections."

The Third Circuit rejected this broad ruling of the mandate. It held that the accommodation does not impose a substantial burden on religion, holding that an employer's submission of the self-certification form to its insurer does not make the employer "complicit" in the providing of contraceptive coverage. 930 F.3d at 574-75.

At no point do the agencies provide any guideposts by which to judge "sincere beliefs." The states contend that the courts should undertake their own objective evaluation of the complainant's religious beliefs. The states insist that RFRA requires more than a "pro forma" or "judicial abdication" to an assertion of a complainant's religious beliefs. However, in the Supreme Court reply brief filed by the Solicitor General, it states that an independent assessment of a complainant's asserted religious belief is "truly incompatible" with a person's faith. It goes further to assert that "[c]ourts have no warrant to second-guess a plaintiff's own understanding of his or her professed faith, or to downplay particular tenets as ancillary to or inconsistent with what the courts perceive as the plaintiff's core beliefs." This represents a radical rewriting of the standards to be applied when judging a sincere belief and would require a total judicial abdication whenever a claim of sincere religious belief is proffered regardless of the context or the consequences of accepting the sincere religious belief assertion.

While an examination of a person's beliefs will surely present challenges to courts, there must be standards imposed on lower court judges or administrative agencies when evaluating "religious" claims. The free exercise of religion has been held to permit people to have the right to believe and profess whatever religious doctrine they desire. Emp't Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 877(1990). If a government action substantially burdens a person's exercise of religion, the person is entitled to an exemption from the rule unless the government can demonstrate that the application of the burden is the least restrictive means of furthering a compelling governmental interest. Merely having religious practices is not sufficient. In Church of Lukumi Bablu Aye v. City of Hialeah, 508 U.S. 520 (1993), the court held that a municipal ordinance prohibiting ritual animal sacrifice, even if a central part of the petitioner's belief system, was enforceable.

For decades, the Supreme Court and the lower federal courts have consistently held that the courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim. See, e.g., Thomas v. Review Board, Indiana Employment Security Div., 450 U.S. 716; Presbyterian Church v. Hull Church, 393 U.S. 450; Jones v. Wolf, 443 U.S. 595, 602-06 (1979). In earlier cases, supra, petitioners were members of a church or sect, which had articulated principles or belief systems. In recent years, however, petitioners have proclaimed themselves to be devout Christians, but not necessarily to be members of a church or sect. Courts have had to address personal beliefs and not the practices or beliefs of a church or sect leaving them adrift to judge a belief in the absence of any articulated religious tenets.

Courts have often evaluated the sincerity of religious assertions. Conscientious objectors have long been subject to inquiries regarding the sincerity of their religious beliefs. See United States v. Seeger, 380 U.S. 163, 185 (1965). Religious claims have been reviewed and rejected in criminal cases. See, e.g., United States v. Quaintance, 608 F.3d 717, 718-19 (10th Cir. 2010). Courts are best able to examine the issue of "sincerity" where extrinsic evidence is evaluated and objective factors dominate the analysis. See Int'l Society for Krishna Consciousness v. Barber, 650 F.2d 430 (2d Cir. 1981). Regardless of this precedent the current administration wishes to cast the long history of evaluating the sincerity of religious belief because it now views that such an inquiry places a substantial burden on the complainant.

In all the recent cases, the petitioner's belief bears a striking similarity to the social agenda of the "religious right," birth control, abortion and gay marriage. These individuals seem to find one type (and only one type) of state-permitted conduct to be anathema to their religious beliefs. It is widely recognized that political beliefs, regardless of how strongly held, are not religious beliefs protected by the Free Exercise clause. In this case, what is the basis for the "religious" objection? Is it scripture based? If so, what chapter and verse are relied upon? It is claimed to be religiously based, but what is the religion? Are these objections religious, as opposed to political, and how does one objectively make this determination?

In order to accept what the administration is proposing, the court would have to accept that executive branch agencies can unilaterally disclaim a compelling government interest established by statute. Without any articulated basis the agencies disclaimed a compelling government interest in the contraceptive guarantee. The court would also have to accept the administration's claim that RFRA permits executive branch agencies to stop enforcing a federal law it determined to substantially burden religion rather than enforce the law through less restrictive means. A decision in favor of the administration would be without precedent. In fact, it directly contradicts Hobby Lobby.

Hobby Lobby held that it was the obligation of employers and insurers to balance the burdens on beneficiaries as well as non-beneficiaries and to find alternative means to assure that all interests to the extent possible are accommodated. In the current case, the administration's proposed remedy would eliminate contraceptive coverage, which is the antithesis of enforcing the guaranteed contraceptive coverage via "alternative means." The administration's effort to rewrite the way our courts interpret claims of freedom of religion should trouble anyone who cares about the role of religion in our society. Throughout America, there are many views about contraception and abortion. Almost all of them stem from a person's religious beliefs. A case-by-case analysis is compatible with accepted notions of freedom of religion. The application of a rigid rule that restricts a court's ability to inquire into a plaintiff's religious beliefs infringes on rather than promotes American's freedom of religion.

William M. Pinzler is an attorney in Manhattan.