Volume 99

The set of teaching materials known as The Legal Process continues to exert tremendous influence over mainstream public-law scholarship. Developed by Harvard Law Professors Henry M. Hart, Jr. and Albert M. Sacks in the late 1950s, those materials formed the cornerstone of the legal education of generations of lawyers, judges, and legal scholars. In part for that reason, the methods of legal interpretation and institutional analysis they articulated arguably still constitute the reigning paradigm of scholarship in the areas of statutory interpretation, federal courts, and administrative law.

Despite their pervasive influence, however, the philosophical and jurisprudential foundations of The Legal Process are poorly understood. The standard historical account of the text denies any such foundations exist, characterizing it instead as an effort by its editors to respond to the skeptical threat of Legal Realism by advancing an “instrumentalist” or “neutral” theory of law that denied the need for, or value of, any deeper philosophical justification.

Though originally offered as a critique of the approach embodied in the teaching
materials, that account has been accepted even by those working within the Legal Process framework. That acceptance is surprising and troubling, because the standard historical account is deeply mistaken. In the first chapter of The Legal Process, the editors consciously advance controversial positions on the nature of morality, law, and legal knowledge. And if one looks carefully at those positions and the sources the editors rely on in staking them out, one can see that they were trying to construct a model of legal practice and scholarship based on the metaphysical and epistemological doctrines of one strand of philosophical pragmatism. Understanding such philosophical commitments not only enables us to better explain how Hart and Sacks took themselves to be responding to Legal Realism, but also forces us to consider how more recent efforts to ground legal practice fare in comparison.

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. 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.

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. 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.

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.

The Forgotten Foundations of Hart and Sacks

Unequal Treatment of Religious Exercises Under RFRA: Explaining the Outliers in the HHS Mandate Cases