The past week has seen two new decisions in the fight over the HHS contraception mandate. Interestingly, both involved motions for preliminary injunctions by for-profit commercial enterprises. Likelihood of success on the merits of the claims is a central inquiry when courts consider a request for a preliminary injunction and so courts' decisions to grant or deny those motions provide a useful window into judges' thinking about the lawsuits. In these two very similar cases, the two federal district courts reached seemingly diametrically opposed conclusions about the mandate's likely legality, one court granting the motion for a preliminary injunction and the other denying it. On closer analysis, however, the two opinions are less far apart than they initially seem. A few thoughts after the jump.The first case, decided last week, is Tyndale House Publishers, Inc. v. Sebelius. The second case, decided yesterday, is Hobby Lobby Stores, Inc. v. Sebelius.In the first case, the district court for the District of Columbia held that the mandate likely violated RFRA, and it therefore granted the requested preliminary injunction. The court began by side-stepping the government's argument that a for-profit corporation cannot exercise religion, declining to reach the issue directly. Instead, it allowed the corporation to assert the religious liberty claims on behalf of its owners. It then went on to hold that the mandate likely imposes a "substantial burden" on the owners' religious exercise, the threshold inquiry for triggering strict scrutiny of the law under RFRA. To survive strict scrutiny, the government must identify a compelling interest in enforcing the law. The court denied that the government had a compelling government interest in enforcing the mandate against religiously motivated, for-profit employers in light of the many exceptions to the mandate the government had already created.In the Hobby Lobby case, the district court for the Western District of Oklahoma expressly denied that corporations can raise RFRA or Free Exercise Clause claims. But it nevertheless considered the owners' claim that the imposition of the mandate on the corporation violated their own religious exercise rights. It concluded that the mandate does not impose a substantial burden on the individual plaintiffs' free exercise of religion because the causal chain between the mandated behavior (the provision of health insurance by the corporation to its employees) and the evil they complained they were being forced to facilitate (the use of contraception) was too long and "indirect."One feature of the substantial burden finding in Tyndale significantly limits its implications for other cases. In considering an earlier case from the Eastern District of Missouri (O'Brien v. HHS), which held that the mandate did not impose a substantial burden on a Catholic-owned for-profit company, the Tyndale court did not reject the O'Brien court's decision (or even its reasoning) out of hand (as this descriptionof Tyndale at the National Review erroneously implies). Instead, its principal response to O'Brien was to distinguish the case on the facts. Specifically, the Tyndale court placed a great deal of emphasis on the fact that the employer in Tyndale was (unlike the employer in O'Brien, or in Hobby Lobby for that matter) self-insured, implicitly suggesting that it might have ruled differently if presented with an employer who participated in a group plan. "This difference in the manner in which coverage is provided is significant," the Tyndale court said, "because while the company in O'Brien contributes to a health insurance plan which ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the health care services used by its plan participants, thereby removing one of the 'degrees' of separation that the court deemed relevant in O'Brien." I agree with the Tyndale court that this distinction between self-insured and group plans is a significant one (at least as a matter of judging the proximity of the employer's involvement with the employee's use of contraception). Its emphasis on that distinction limits the reach of the Tyndale court's reasoning. But the question the distinction raises is whether burdening the choice to engage in self-insurance (which a religious employer may choose to engage in for non-religious reasons) constitutes a substantial burden of religious exercise.The Tyndale court did not discuss in great detail the nature of the substantial burden, continuing the trend of courts that have ruled against the mandate largely treating the question of the substantial nature of the burden as turning solely on the size of the penalty for violating the mandate rather than the degree of burden that compliance with the mandate would constitute on the plaintiffs' free religious exercise. This strikes me as a problem. A burden can fail to be substantial if there is only a small penalty for noncompliance. But the cost of noncompliance is only half of the equation. A burdencan also fail to be substantial (even in the presence of severe penalties for noncompliance) if compliance is not genuinely inconsistent with exercise of their religion (e.g., by imposing the penalty for not doing something their religious beliefs make merely disagreeable but not impermissible). Although courts have to tread lightly to avoid being put in the position of judging the truth of claimants' religious views, I do think they are entitled to probe the (internal) logic by which a claimant argues that the burden of compliance on their religious exercise is substantial rather than trivial. By utterly failing to interrogate the nature of the claimed burden, even on the claimant's own terms, the Tyndale court dilutes the "substantial" requirement.In contrast with the court in Tyndale, the Hobby Lobby court grappled at length with the substantiality question. Its efforts were somewhat unsatisfying, but I think it deserves credit for taking the issue seriously. The court employed a definition of "substantial" adopted by the Seventh Circuit: "a substantial burden on religious exercise is one that necessarily bears direct, primary and fundamental responsibility for rendering religious exercise . . . impracticable." Although the court got hung up on the question of directness and indirectness, it seemed to be gesturing in the direction of a distinction between proximate and remote involvement in the supposedly evil act. It seems to me perfectly appropriate for courts to take a claimant's religious beliefs about what is evil (i.e., the use of contraception) as given but then to ask how involved with such an evil the law requires the claimant to be and how the claimant has treated similarly remote (or proximate) cooperation with the same evil in comparable contexts. Impracticability is also an important part of the Seventh Circuit's definition, since many things that burden religious exercise (e.g., by cutting off paths we'd rather have available or by requiring things we'd -- all things considered -- rather not do) do not make the practice of one's faith impracticable.This brings me back to the Tindale court's group insurance/self-insurance distinction. If the contraception mandate cuts off the option of self-insurance for certain religious employers, by requiring self-insured employers to cooperate too closely with the employee's choice to use contraception, the question still remains (under the Tyndale court's reasoning) whether making that option less attractive (or even unavailable) to religious employers counts as a substantial burden. If it does not count as a substantial burden to require an employer who participates in a group plan to pay for contraceptive coverage (as two district courts have now held and as the Tindale court at least suggested), then burdening self-insurance with the mandate probably should not count as a substantial burden, since the self-insuring employer can always choose to shift to group coverage.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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