The latest lawsuits challenging the Affordable Care Act’s contraceptive-coverage regulations illustrate the transformation of free-exercise lawsuits — including those brought under the federal Religious Freedom Restoration Act — into potent political tools. Current free-exercise doctrine and practice inadequately address organized campaigns of free-exercise litigation seemingly motivated by political ideology rather than sincere religious belief. This Article examines the political, ideological, and religious forces that have culminated into the political and legal opposition to the ACA’s contraceptive-coverage regulations, identifying anomalies in the resulting legal challenges from for-profit corporations and non-profit organizations along the way.
After describing the harms caused by politicized free-exercise lawsuits turning on insincere claims of religious burden, the Article offers initial proposals to both courts and governmental litigants to combat the transformation of free-exercise lawsuits into weapons of political warfare. In particular, courts and governmental litigants should adopt a more flexible approach that acknowledges the practical realities of modern religious-liberty cases, involves more frequent and sustained challenges to plaintiffs’ sincerity when appropriate, and gives the government leeway to reach compromises with religious objectors without undermining the government’s ability to defend other cases. On the other hand, failure to police insincere free-exercise claims will continue to cause mainstream support for genuine free-exercise claims and religious accommodations to dwindle.