follow-up on Hobby Lobby: final thoughts

Jonathan Adler disagrees with me (not personally) about the science of contraception and whether the Court should have paid more attention to it. I think I said most of what I had to say on the subject in that first post, but I did want to pick up on one issue that Adler raises, quoting from this post by Nicholas Bagley:

Scientists can demonstrate that the challenged forms of birth control almost never prevent implantation of a fertilized egg. But it’s very hard for scientists to prove that it can never happen.

That’s where religion comes in. Does facilitating the use of contraception that might conceivably prevent implantation, even if that risk is very low, contravene some religious precept? Science can’t answer that question. A religious person might think that it’s wrong—sinful—to commit an act that presents a risk, however remote, of something very bad. Should the courts be in the business of second-guessing those kinds of religious claims?

I’m going to say yes. First, if the actual belief is literally that it’s wrong to commit an act that presents “a risk, however remote, of something very bad,” I would submit that the law simply can’t give legal effect to such a belief, since every act presents some risk of a very bad outcome. This interconnected universe of ours simply does not allow for action absolutely free of small and unlikely risks of some sort of horrific outcome. We soldier on.

If the objection is, rather, that there is some risk that the science is wrong, and we should not require people to act where science is uncertain, I have two replies to that. First, science is never certain about anything, and it rarely even stands still on an idea. I already discussed this in the prior post, but courts are called on all the time to make the best of developing science, and there are judicially manageable standards for trying to assess the best science of the day. That is the best we can do, and people live all the time with tort awards and criminal sentences based on science that may, later, turn out to be false or at least questionable. Again… we soldier on.

But moreover, the language of the RFRA statute does not require the courts to entertain every possible scientific outcome. The statute only protects those whose religious exercise is under a substantial burden—not a trivial, remote or speculative burden. And here—since I’m supposed to be studying for the bar—I’d like to borrow some concepts from torts that might help illuminate whether a burden is “substantial” or not.

First, there is the famous “Hand formula,” used for determining negligence liability. Judge Hand turned the wispy “reasonable person” theory of negligence into an algebraic formula: if the burden of taking some precaution was greater than the product of the likelihood of the harm and the magnitude of the harm, then the defendant was not obliged to take that precaution. (This is usually expressed as “B > PL”.)

Similarly, where the burden to religious exercise turns on some scientific fact about the world, I think it would be perfectly reasonable to define substantiality of the burden as the product of the likelihood that the fact is true and the magnitude of the subjective harm to religious exercise if the fact is true. So the formula would be something like: Bs iff PL > T, where Bs is a finding of substantial burden, P is the probability that that scientific fact is true, L is the harm if it is true, and T is some threshold that prevents trivial claims but respects substantial ones.

Clearly, this is a method of thought, not actual math—we will almost never be able to actually quantify the harm. But this is true in torts as well, with reputational and emotional harms. We can still apply the concept without exact numbers, using intuitive approximations.

I would also suggest that the subjective harm be given some objective discounting based on the attenuation of responsibility. In a number of different tort doctrines—comparative negligence, superseding cause, foreseeability analysis—the law takes account of the distance between an act and one of its ultimate effects, and reduces legal culpability based on that distance. Similarly, I think perhaps in RFRA claims the law should recognize that even if the plaintiff finds it a grievous sin to cause an abortion (however they may idiosyncratically define that), their actual harm is surely reduced somewhat by the number of intervening actors who have to work together to make that occur—the insurer, the doctor, the woman, and of course nature itself.

And this would comport with other areas of the law where administration of civil society has to reach some accommodation with religious belief. It is certainly true that Quaker pacifists, for example, can be excused as conscientious objectors from carrying arms in combat. However, they are still required to perform some service—clerical work, say, or hospital duty—and likely as not that work will still support the war effort, if only because it frees up another body to go and fight. (I am thinking here of large wars involving a draft.) Nonetheless, even though their work to some extent still contributes to killing and violence, the connection is attenuated enough that we consider their religious obligation to refrain from warfare satisfied, at least as far as the law is concerned.

Thus, a revised formula might be: Bs iff P(LD) > T, where D is some discounting factor based on attenuation.


Ultimately, I suppose I’ll come back to the point I was making in the first post, which is that because RFRA imposes strict scrutiny on government actions upon a finding of “substantial burden,” that burden inquiry should not be standardless or pro forma. Of course, the calculus will necessarily often involve claims about deep personal moral stakes, or claims of supernatural goings-on, which we probably cannot scrutinize too closely without undermining the law’s purpose of protecting religious liberty. But we should not abandon reason entirely in making the inquiry; should not throw up our hands and declare that any claim of burden is as good as any other. The very existence of the word “substantial” in the statute indicates that this was not Congress’s intent.

And that seems like as good a place as any to leave off this set of ruminations and get back to either bar study or (if I’m unable to resist the lure of the blog) any of the half-dozen Indian law subjects I have teed up but haven’t had a chance to do justice yet.

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