Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services ("HHS") has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act ("RFRA"). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six.1 Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking RFRA's protection.2

The analysis in these cases is turning largely on whether courts find that the HHS mandate imposes a "substantial burden" under RFRA. RFRA prohibits the government from imposing a "substantial burden" on a person's religious exercise unless the government proves that imposing the burden is the least restrictive means of advancing a compelling government interest.3 To date, every court to find a substantial burden has entered a preliminary injunction. Thus, determining whether or not the mandate imposes a "substantial burden" is crucial to the outcome of these cases.

Why have six courts denied relief while most other judges have granted it? One part of the answer is that these courts have wrongly concluded that religious liberty rights disappear when an organization earns profits—an error I have discussed at length elsewhere.4

This essay will explore a second error made by these outlier courts in applying RFRA's "substantial burden" test. Properly understood, RFRA's "substantial burden" analysis examines whether the government is coercing a believer to abandon a religious exercise (i.e., religiously-motivated conduct or abstention from conduct). Once sincerity of the religious motivation is established—an issue the government has not been contesting in the mandate cases—the underlying religious reasons for the religious exercise should be entirely irrelevant.

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In Hollingsworth v. Perry1 and United States v. Windsor,2 or perhaps in some more clearly justiciable case a few years hence, the Supreme Court will decide whether states can prohibit same-sex marriages. The Becket Fund for Religious Liberty argued in both pending cases that protecting religious liberty is a rational basis for banning same-sex marriage.3

The conflict between religious liberty and gay rights is bad for both sides and dangerous for the American tradition of individual liberty. The Court can protect the rights of both sides.

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