This Article contends that on remand, the circuit majority should join the Eighth Circuit and uphold the right of religious nonprofits to forego the notice required under the Accommodation. Contrary to the majority’s claim, Hobby Lobby and Holt v. Hobbs preclude courts from deciding whether the ACA (or any other statute) actually burdens a religious adherent’s sincerely held beliefs. Although, as Chief Justice Marshall famously declared, “it is emphatically the province and duty of the judicial department to declare what the law is,” courts lack the authority and competence to declare what the religious commitments of a faith are and when those commitments are violated. Under the Court’s free exercise precedents, courts can determine only whether the government puts a religious practitioner to the choice of engaging in conduct that violates her beliefs or disobeying the government’s policy and facing “serious” consequences. Religious and philosophical questions regarding moral complicity are left to religious adherents, not the courts. As the Founders recognized, religious and moral questions transcend the legal, imposing a different – and higher – obligation on religious believers. For religious adherents, only God (through a religious authority determined in accordance with their sincere religious beliefs) can determine whether an action makes them complicit in sin. Consequently, as the Court explained in Hobby Lobby, “question[s]” about moral complicity are ones “that the federal courts have no business addressing.”
Scott W. Gaylord,
RFRA Rights Revisited: Substantial Burdens, Judicial Competence, and the Religious Nonprofit Cases,
81 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol81/iss3/5