Do exemptions from the ACA’s ‘contraception mandate’ threaten religious liberty?

In March, the Supreme Court will hear a pair of cases on whether for-profit employers can claim a religious exemption to the Affordable Care Act’s requirement that employer health plans cover contraceptives without any out-of-pocket expense because the use of contraceptives violates their owners’ religious beliefs.

In a Washington Post op ed this week, Fred Gedicks, the Guy Anderson Chair at BYU Law School (and a prior T&S guest blogger), flips the case on its head, claiming that it is actually exemptions from the “contraception mandate” that pose a threat to religious liberty. The op ed briefly summarizes a journal article that Gedicks has co-authored in the forthcoming Harvard Civil Rights-Civil Liberties Law Review. As Gedicks closes the op ed with an explicit appeal to his “minority faith,” I’m curious to what extent Gedicks’ line of reasoning resonates with other Mormons.

In brief, Gedicks argues that “[e]xempting ordinary, nonreligious, profit-seeking businesses from a general law because of the religious beliefs of their owners would be extraordinary, especially when doing so would shift the costs of observing those beliefs to those of other faiths or no faith. The threat to religious liberty, then, comes from the prospect that the court might permit a for-profit business to impose the costs of its owners’ anti-contraception beliefs on employees who do not share them by forcing employees to pay hundreds of dollars or more out-of-pocket each year for contraception and related services that should be covered under the law.”

These costs, Gedicks says, “would be spread widely throughout the labor force,” as Hobby Lobby, the arts and crafts chain that is plaintiff in one of the pending Supreme Court cases, alone has in the neighborhood of 13,000 employees. A Supreme Court decision in the company’s favor would, according to Gedicks, result in these 13,000 employees “underwrit[ing] the religious beliefs of a single family.”

Gedicks concludes by noting that “As a Mormon raised where few other Mormons lived, I have grown to appreciate that the First Amendment not only left me free to choose my minority faith but also free to live without paying for the religious choices of others. Americans must be free to practice their respective faiths, but also free from bearing the burdens of their employer’s faith. The Supreme Court should ensure the liberty of all Americans by rejecting the efforts of for-profit businesses to impose their owners’ religion on employees.

47 comments for “Do exemptions from the ACA’s ‘contraception mandate’ threaten religious liberty?

  1. Presumably the owners of Hobby Lobby pay employees with money, that those employees can spend on any number of things to which their employers might have ideological objections. I don’t see how providing other benefits should be treated any differently. I agree with Gedicks – whether it is Catholic hospitals or Hobby Lobby, they should not be able to impose their beliefs on employees.

  2. Bill, that’s a good point, but in this case the requirement says you *can’t* just give you employees money to spend as they see fit, instead you are required to force them take a portion of their compensation in the form of birth control benefits, whether the employer or employee like it or not.

    Imagine a firm with an owner who has no objection to contraception, but a set of employees all of whom do object. The law still requires that the employees take a portion of their pay in the form of contraception benefits (or perhaps they would have the option of forgoing the contraception benefits only if they are willing to refuse the entire, very valuable, tax-exempt employer provided health insurance package.)

    Seems to me this limits the liberty of BOTH the employer and employee. Am I missing something here, or is Gedicks?

  3. This is kind of silly. As an employee, you are burdened with your employer’s moral stance. That’s part of employment. So long as you are free to look for work elsewhere, I don’t see that the employer is forcing their beliefs on anyone.

    Seriously. “You aren’t giving me something” hardly translates to “you aren’t allowing me something.”

  4. “So long as you are free to look for work elsewhere” is the key qualification. So much of U.S. employment law assumes this to be the case, but for practical purposes, it is more often a legal fiction than a practical reality–especially in tough economic times.

  5. JKC. Difficulty in finding another job just means that the individual has to weigh his employment against his ideals. That is no reason to force employers to provide benefits. At that point, the purpose of providing benefits is undermined. If there is something the employer doesn’t provide that is important enough, they’ll have to weigh their ideals against high turnover and losing the best talent to those who do.

    “Tough economic times” are not analogous to slavery.

  6. you are required to force them take a portion of their compensation in the form of birth control benefits, whether the employer or employee like it or not.

    Nonsense. If the employer doesn’t like it, they can simply drop health insurance as part of their compensation package. They will have to pay a fine of $2,000 or (more likely) $3,000 per employee, but that is cheaper than the average $4,900 that employers contributed toward the cost individual plans in 2013 (and far less than what they contributed toward family plans).

    But if they choose to continue their insurance plan. What is the value of the compensation employees are “forced” to accept in the form of contraception benefits? The Guttmacher Institute argues (convincingly) that the answer is zero or even negative. Their report concludes that “[r]esearch and experience now suggest that contraceptive coverage does not raise insurance premiums and that employers providing such coverage can, in fact, save money by avoiding costs associated with unintended pregnancy.”

    So I think it is all a big nonissue.

  7. “you *can’t* just give you employees money to spend as they see fit, instead you are required to force them take a portion of their compensation in the form of birth control benefits, whether the employer or employee like it or not.”

    Only if you offer your employees health insurance, which no employer is obliged to do.

  8. “‘Tough economic times’ are not analogous to slavery.” Indeed not. But that wasn’t my point.

    I take it that your point is that (unless you are obligated by contract) you can always quit a job you don’t like, so therefore, it isn’t “slavery.” I don’t disagree, but having the legal right to do something and having the realistic ability to exercise that right are two different things. The point is that “just go find another job” is not a realistic option for much of the workforce, at least not without significant risk of long-term unemployment. People can disagree over whether the burden imposed on an employee justifies the burden of the contraception mandate, but let’s not pretend that it is easy or even realistic for most employees to just find another job. That’s a legal fiction.

    “At that point, the purpose of providing benefits is undermined.” I don’t understand what this means.

  9. Are the religious freedoms of employers threatened by the contraceptive mandate? Last Lemming brings up an excellent point. The ACA is not forcing any employer to provide coverage for health care, although they do obligate them to a shared responsibility payment in the event that they have over 50 employees and opt to not provide coverage for them. So coverage for contraception is only mandated for employers who opt to provide coverage for health insurance. So how can the government be infringing upon the religious freedoms of individual business owners when they have the option of opting out of providing healthcare coverage?

    Are the religious freedoms of employees threatened by a for-profit business opting out of providing insurance as part of their compensation package because of the contraceptive mandate? No.

    Although Silver Rain is wrong about employees having to be “burdened with” their “employers’ moral stance.” Suppose I work for an employer whose moral stance is that black people should be denied service because they are inferior and don’t deserve it, and threatens to fire me unless I comply with his orders to shun blacks (and stuff like this really happened in the southern US in throughout the early twentieth century). My employer would be acting against US law by doing that. Everyone is free to believe as they please, but they are not free to practice those beliefs in all situations. Protecting absolute freedom of practice (whether or not the practice as a religious basis) is untenable.

  10. Oh, so “if they won’t provide the health insurance WE demand they provide, we will make them not allowed provide it at all.”

    Way to stick up for the working class. *LOL*

    JKC, you’re totally missing my point. The difference between “legal right” and “realism” is moot. At the point you outline, the individual still has the ability to weigh conflicting needs (morals vs. putting food on the table) and make a decision for themselves which is more important. If you’re seriously trying to argue that someone should be able to put food on the table AND act on what they believe, you are undermining your own point. That applies to business owners, as well, unless you admit to being a hypocrite.

    And I stand by what I said. By profession, I provide an artistic service. If I refuse to design for one of their clients because I don’t agree with the morality of that client, they can fire me. I find it telling to your understanding of the concept that you reach back into the 60s for a legally-protected opinion to drum up a reason why my point has no merit. There are many, many other moral stances that I could be fired for because my boss doesn’t like them, and the law would have no protection for me.

    Believing otherwise is living in an imaginary world of unicorns and rainbows. I hope you have the luxury of preserving that opinion of life and employment. (And that’s not sarcasm. I really wish I could still think that way.) Forcing employers to employ people or live according to their beliefs is not going to end up the way unbelievers (or casual believers) think it will. Eventually, the worm will turn.

  11. I haven’t read Professor Gedicks’ work directly; but the write-up presented here seems to obscure the underlying fact that Person A is being compelled to pay for Person B’s birth control, regardless of Person A’s religious mores. The fact that such a choice may be cheaper for the entire plan in the long run seems irrelevant to the discussion of individual liberty, provided the plan participants understand the math and are willing (via higher premiums or deductibles or whatever) to underwrite the cost.

    Steve’s and LastLemming’s insistence that ACA does not “force” employers to do anything doesn’t come off as terribly comforting to me. Basically the employer has to forfeit his right to property that he has already earned, in order to be permitted to keep his religious scruples unadulterated. I wasn’t aware that the free exercise clause had a pay-to-play proviso.

    And let us assume, for a moment, that we all accept the principle that employers must never burden their employees with their own “moral stances”. I wonder whether that relationship works in reverse? Can we similarly agree that an employer must never be “burdened” with the “moral stances” of the employees and employee unions it associates with?

  12. I think people are missing my point: the requirement to provide birth control benefits restricts BOTH the employer AND the employee. The situation is mostly symmetric. I don’t see how this can be said to increase anyone’s religious liberty, although some people will of course be happy with the outcome.

    Yes there may be ways for the employer or employee to opt out of employer-provided insurance system entirely, but this is a large price we are requiring people to pay if they want to express opposition to birth control.

    Last Lemming asserts that birth control benefits are actually free to the insurer. I’m skeptical if this is really true, but in any case I don’t think it is central to arguments about the principals at stake here.

  13. Silver Rain, yes, healthcare providers are required to provide a number of essential health benefits, and the coverage of some of the expenses of contraceptives is just one of those ( The justification for covering contraceptives is of course that it will save insurers and employers money in the long run since about half of all pregnancies are unintended. The contraceptive mandate most certainly does stand up for the working class since it reduces the necessary costs of family planning. As for the mandate infringing on religious liberties, no it doesn’t because employers can opt to make the shared responsibility payment instead of coverage. Furthermore the vast majority of Americans (some 90% of Americans according to a recent Gallup poll) believe that the usage of contraceptive medications is moral.

    Also, for-profit businesses are subject to regulations. Someone needs to protect employees from employers in the event that the latter acts unjustly towards the former. Employers don’t and can’t have free rein over their employees. Certainly they can make some moral requirements. They are within their rights to make dress requirements, speech requirements, and all kinds of behavior requirements. But they can’t require them to be of a particular race or religion. And they cannot restrict them from healthcare essentials. So a Jehovah’s Witness for-profit employer cannot restrict blood transfusions and surgery from being on his/her employees’ health plans (if such are offered) over moral concerns.

    Having a system of order and justice requires government regulations of private businesses, insurers, and the health care industry. Without checks and balances in society, anarchy and lawlessness may prevail. And an anarchic and lawless environment can be a scary place for many people.

  14. JimD, “no employer has to offer coverage,” according to

    Property owners don’t have to be for-profit business owners. But if they are engaged in for-profit activities, and own some property for business purposes, they are subject to some federal regulations and cannot enjoy absolute religious rights in that specific business activity. As I wrote in comment 11, for-profit business owners cannot deny employment to people based on their race, even if it is part of their religious beliefs that black people are inferior to whites and should not mix with them.

  15. When push comes to shove, religious liberty is always a tradeoff. Be that as it may, Hobby Lobby and its coplaintiff Mardel (a Christian bookstore chain) are not imposing their religious views on employees. The companies do not fire anyone for using birth control. (Also, the lower court’s decision says these companies only object to abortifacient contraceptives, not the pill. But I believe some Catholic companies want a total exemption.)

  16. I would add that the ACA contraceptive mandate is the equivalent of picking a fight. Does the government want birth control for all? Great — then offer birth control for all. But don’t require private parties to do your bidding on such a morally freighted issue.

  17. In short, yes.
    Many assume that the first amendment religion clauses do not apply to “corporations” but only to individuals. That view in and of itself restricts religious liberty. Note that amendments 1-8 apply to corporations at least in part. Even those which specifically state that “persons” are covered. In the first amendment “Congress shall make no law…”. It is clear that several parts of the ACA are an infringement on a broad interpretation of the first amendment. This is surely intentional and part of the “pass it so we know what is in it” type of lawmaking.
    Amen to Jake Cox’s comment above.

  18. I appreciate the commenters’ interest in the arguments of the op-ed and the law review article on which it is based. Most of them, however, seem to be criticizing the contraception mandate as a matter of policy. The mandate might be a good thing or a bad thing (personally I like it as a matter of policy), but that is beside the point of the op-ed. What follows is long, but perhaps it will focus the issues.

    The Affordable Care Act has been upheld as the constitutional law of the land by SCOTUS. The mandate was adopted under the authority of the ACA and it, too, is the law of the land: Employer health plans other than those sponsored by churches (which are exempt) and religious nonprofits (which may avoid coverage under a complicated regulatory accommodation)must cover FDA-approved contraceptives. In short, employees covered by a for-profit employer health plan have been granted a valuable legal entitlement to contraceptive coverage without additional cost beyond the basic employee contribution to the health plan premium.

    Exempting for-profit businesses from the mandate to accommodate their (or their owners’) religious beliefs about contraception takes away an insurance coverage benefit to which employees are entitled under law, to enable the practice of *someone else’s* religion. As laid out in the article linked in the op-ed, this violates Establishment Clause precedents, and is in tension with Free Exercise Clause and Title VII jurisprudence.

    Forgive me, but it is ridiculous to suggest that employees are not harmed when they lose the benefits of the mandate because they can still buy contraceptives with their after-tax wages. This is like saying that denying an employee social security benefits to accommodate an employer’s religious objection to them (there’s an actual case about this, involving an Amish employer) causes no harm, because the employee can still save up for retirement with his or her own dollars. Employees are legally entitled to social security benefits, and taking them away to facilitate their employer’s religion is to shift the costs of religious accommodation from those who practice a religion to those who don’t. However you slice it, exemptions from the mandate impose a significant burden on employees for the sole purpose of enabling the employer’s practice of his or her or its religion.

    Some of you have suggested that this is just the way life is, all employers impose their morality on employees, and those who don’t like it should get another job. Practical realities aside, this was perhaps a good answer in 1963, but not since Title VII was enacted as part of the Civil Rights Act of 1964. Among many other things, Title VII prohibits religious discrimination in employment, including the imposition of the employer’s religion on employees. The two cases currently before the Court don’t expressly raise Title VII religious discrimination issues, but the Obama administration argued it in its opening brief in support of the more fundamental argument that exemptions are inappropriate when they burden third parties who don’t benefit from them.

    In any event, it is simply not correct that an employer may impose religious beliefs on an employee, or that an employee or dislikes it has no recourse but to find another job. I also find it remarkable, to be candid, that members of a minority faith like Mormonism are so sanguine about putting up with the impositions of the politically dominant American religions like Catholicism and evangelical Protestantism. A lot of Mormons live in the South and the Midwest; which should they have to sacrifice for their employer’s religion to put bread on the table? But perhaps that’s just me.

    Again, the mandate is not popular among conservatives which, these days, seems to include a majority of Latter-day Saints. But the Establishment Clause violation cannot be waived away by arguments that the mandate is a bad idea and never should have been promulgated and why can’t people buy their own pills? It’s here, and because it’s here, taking away its benefits from employees for the sole purpose of enabling the practice of their employer’s religion violates the Establishment Clause.

  19. So if an employer says to the employee “I do not wish to provide you with contraception coverage as part of your health plan, but instead I will give you an equivalent amount in cash, which you can use to purchase your own contraceptives if you wish,” how does this limit the employee’s religious freedom? ACA forbids such an arrangement, even if both employer and employee would prefer it.

    Professor Gedicks writes as if employer provided benefits simply come free from the heavens, rather than being the outcome of a labor market process. If the employer is required to provide costly benefits, the cost will generally be borne by employees in the form of lower wages.

    Regarding Gedicks’ social security example, he doesn’t seem to realize that there are literally millions of employees who would be happy to be able to opt-out of the social security system and take that extra 12 percent of their salary in cash instead. Mandating participation in social security might be a good idea overall, but it is ridiculous to claim that it increases liberty.

    This kind of thinking is why I’m in favor of trend to teach economics in in law schools!

    (Again, Last Lemming has asserted that this is a special case where the benefits really do not cost the employer any money. But notice that this plays no role in Gedicks’ argument, as his social security example makes clear.

  20. SilverRain,

    I think I am missing your point.

    You said: “[s]o long as you are free to look for work elsewhere, I don’t see that the employer is forcing their beliefs on anyone.” I pointed out that the “free[dom] to look for work elsewhere” is illusory if there is not actually a realistic possibility of “work elsewhere,” which is the case for many, many workers.

    But now you seem to be arguing that it doesn’t matter if workers are “free to look for work elsewhere” after all; instead, they should be forced to choose between unemployment and subsidizing their employer’s religious beliefs by giving up benefits that they are legally entitled to, even when there is no possibility of finding another job. That’s a reasonable opinion, I suppose, but it is different from the opinion I thought you were expressing: that forcing them to make such a choice is only fair is they have other options for work.

    In any event, this discussion is really peripheral to Professor Gedick’s point. You are arguing that the contraception mandate itself is bad, which is a fine opinion to hold, but not really relevant to Professor Gedicks’ argument, especially as he has now clarified it.

  21. Steve Smith, not offering a benefit =\= “restrict(ing) them from healthcare essentials.” That is the fallacy in such reasoning. Your entire first paragraph is so hopelessly strange, I can’t find just one place to start to pic it apart. Basically, you seem to be saying it’s better to force employers with a particular moral belief (and it’s not your right to tell them whether or not something violates that belief) to not provide insurance at all over violating their beliefs.

    I agree that there are some protections necessary for employees. I just don’t think this is one of them. I think such protections should be made into law only VERY carefully and only if there is a systematic, widespread need (the civil rights movement doesn’t even apply here. Seriously get over that example, people. Unless you really understand the legal and social climate of that time, you shouldn’t use it. It just makes you look like a parrot.)

    If an employer wants to not provide a particular benefit that is otherwise usual, as long as they disclose that in the hiring contract/paperwork, I don’t have a problem with it. An employee who wants that benefit badly enough can choose to employ themselves elsewhere or not at all. But an employer should be able to offer a limited health benefit. It shouldn’t have to be all-or-nothing.

    Some of you people are going to seriously regret your opinions about this once you are the ones being forced to act against your faith in order to conduct business. I’ve never even taken anything but basic economics, and I can see the faulty reasoning.

    JKC, yes you are missing my point. The actual ability of someone to find another job doesn’t make a difference. That is for THEM to weigh. If it is truly that impossible to find work elsewhere, and they need to work, they are able to choose to accept employment despite not getting “free” contraception through their insurance. Ugh. I’m so tired of people thinking that employer-provided (as opposed to government-provided) benefits and gifts are a right. They are BENEFITS, otherwise known as “incentives to work here vs. somewhere else.” Not “something we are required to offer in order for the government to allow us to pay people to work for us.” Once such lofty ideals of forcing people to be “good” push up against their own internal idea of what “good” is, what you’re going to end up with is people who will find other ways to get the job done besides paying people.

    As far as Gedicks’ argument, I’m only bothering to argue the points that have enough merit to me to be worth arguing. Gedicks bases his arguments on too many assumptions that are not as indisputable as he thinks. It’d be like arguing the color of the rock on the table when I see only a piece of wood. *L*

  22. And I’m thinking I should have been smart enough to not dive into this thread in the first place.

    Basically, this is my point boiled down. It is not an imposition of religion to not be given a particular benefit from an employer. Imposition of religion would be if an employer required actual practice of their religion from all their employees. Discrimination would be if an employer gave a benefit to some people (like those who belonged to their religion) and not others.

    But it is far more imposing for the government to say “if you want to do business, you have to act according to our beliefs” than for a business to say “if you want to work here, you have to accept that I’m going to act according to my beliefs.”

    And if someone’s going to try to twist a logical and political DNA strand by saying “the law says this, therefore this is what the law should say, and we shouldn’t try to change it,” then I frankly don’t have much time for them.

    But I’m going to move on to my real work at this point. Hopefully the rest of you have a fun time arguing from here on out. *L*

  23. “It is not an imposition of religion to not be given a particular benefit from an employer.”

    Now I think I see your point. If we were talking about a benefit that is not required by law, I would agree. But we are talking about a benefit that is required by law. We might as well say that if an employer ignores OSHA standards because they have a religious objection to them, that is no burden on the employees who have to work in an unsafe environment because if their personal safety is really that important to them, they can always just find a safer job, and if they can’t, well then they are always free to just accept employment without having free guarantees of safe workplace.

    Or we might as well say that if an employer ignores the law requiring cash wages because he has a religious objection to handling money, and decides to pay with company scrip instead, that is no burden on the employee because he can always find another job, or, he can just accept the payment of scrip without having free guarantees of a liquid cash wage.

    The fact is, employees of companies that are covered by the FLSA have a legal right to be paid in cash, even though that is a benefit that the employer provides, because the employer is forced by the government to pay cash wages. In the same way, employees of companies that are covered by the ACA, and that choose to provide insurance rather than pay the penalty, have a legal right to insurance that includes compensation coverage. It is well-established in U.S. law, that denying that right due to the religious beliefs of someone else is impermissible, just like it is impermissible to bear more than a minimal burden to give his employee Sundays off due to the employee’s religious belief. You may not like that contraception coverage is now required by law, but that won’t change the fact that it is, and since it is required, access to it, by employees of covered employers, is a “right,” not just a “gift” or “benefit,” to use your terminology.

  24. The unfair competition angle is one that I’m a little surprised hasn’t come up. The basic idea is that if you get to be excused from following the law, due to your religious belief, you save money and get an unfair advantage in the marketplace over employers that do bear the burden of following that law. The cynic would predict that if these cases are successful, there will be a rise in employers suddenly finding religion and asking for exemptions to ACA mandates—swearing that the fact that their conversion helps them stay competitive with other employers who have been exempted is only a coincidence.

  25. SilverRain, the employer-based healthcare coverage system is clearly not the best solution. A better solution would be a single-payer, or near single-payer, government-funded healthcare system where employers wouldn’t be held responsible at all for coverage. But a single-payer system would not have been passed by Congress. Nonetheless, the idea of the ACA was to bring the exorbitant healthcare costs in the US down (which were twice as much per person as any other country’s healthcare costs, even Norway and Switzerland), and there was a way to do by still keeping the employer-based system. The way was to obligate all citizens to buy health insurance and obligate all employers with over 50 employees to pay a fine if they did not wish to provide health insurance. Justice Roberts (and four others on SCOTUS) ruled that the mandate to do so was perfectly legal, reasoning that the US was within its rights to raise taxes on US citizens.

    Yet employers and healthcare providers can’t just pick and choose everything they will or will not cover, even if it is on a religious basis. Suppose I were an employer and went through a specific healthcare provider and we decided that the healthcare coverage for my employees would only cover a number of extremely rare diseases at specific distant hospitals, and we wouldn’t pay for ambulances or stays at these very expensive hospitals. We said that we could not cover more common diseases because of moral objections on religious grounds. Suppose that employers throughout the US converted to my religion because it was a good way to cut down healthcare provision costs and no employee could receive coverage for care for common health problems. That wouldn’t be right would it? The government has determine a number of essential benefits in healthcare coverage, otherwise healthcare coverage could easily become a scam, meaning that healthcare providers could maintain the semblance of covering healthcare needs, but then get out of covering anything real. Healthcare providers have to be held to a standard.

    “But it is far more imposing for the government to say “if you want to do business, you have to act according to our beliefs” than for a business to say “if you want to work here, you have to accept that I’m going to act according to my beliefs.””

    No it isn’t. I have can influence how the government votes and what laws it passes. The ACA passed fair and square in Congress and was a reflection of the majority belief about healthcare at the time of its passage. However, the influence that I have on business policies is much less. Now if it is just one employer whose beliefs are a burden on me, that is not a big issue; I can just go another job. But what if it is lots and lots of employers over a 500 mile radius who have a common bias? That was (and still is in many cases) the unfortunate reality of parts of the US in regards to blacks, latinos, and women. We needed the US courts to obligate employers to act justly, to make it illegal for them to discriminate. What if Mormons became a widespread target of discrimination? I can’t imagine you still standing up for the idea that “as an employee, you are burdened with your employer’s moral stance.”

    There is no rule of law without a strong central government. The alternative is arbitrary rule of persons. Employers have to be held accountable to law. They can’t just do anything they please in the name of religious belief, for religious belief is whatever you make of it. There is nothing restricting me from claiming that I have a religious belief that women are inherently evil and inferior to men. I am within my rights to believe that. But I can’t start a business and practice that belief by harassing my female employees and giving them significantly lower pay. I would most certainly be prosecuted for such behavior and I would have no justification by appealing to the idea that “those are my religious beliefs” in that case. The owners of the Hobby Lobby are within their rights to believe whatever they please about contraceptives. They have the right to go buy land and build a large building where they assemble with other people and talk about their beliefs about how contraceptives are evil. But they don’t have to be owners of a for-profit business. If they’re angry about regulations and requirements they can go do something else. But they can’t just pick and choose which laws they want to abide by in the name of religious belief. The laws were originated based on collective morals, anyway.

  26. ” the employer-based healthcare coverage system is clearly not the best solution”

    A thousand times this. If the government hadn’t capped wages during World War II and then allowed corporations to evade wage controls by providing fringe benefits like health care (and then give them–but not individuals and families!–a tax subsidy for doing so), we wouldn’t be having this debate since employers would have no incentive to offer any such thing, especially in the absence of organized labor.

    Obviously a lot of Americans are satisfied with the status quo, or at least have a hard time imagining anything different, but employers subsidizing–and a small group of colleagues’ health histories setting the rate for–health care hardly seems like a hill worth defending, much less dying on.

  27. See, I’m operating from the premise that laws that are stupid can be changed.

    I think opening up healthcare across state lines and allowing employers to offer a voucher (value set by them) that can be used towards any health insurance would be the best option. Then the government would only have to regulate the health companies, and people could clearly evaluate their benefits across jobs.

    I find it hilarious that people think adding more insurance to the healthcare system and regulating what can and can’t be offered through it by the government. Clearly, people don’t understand the nature of insurance.

  28. Sorry, that was supposed to read “I find it hilarious that people think adding more insurance to the healthcare system and regulating what can and can’t be offered through it by the government will REDUCE costs.”

  29. Okay, so the ACA was democratically passed and upheld as constitutional. So was RFRA (constitutional as to federal government). RFRA, by its terms, trumps, because the democratically passed ACA contains no exemption clause — nor would it have passed if it contained such a clause. This looks like democracy at work to me. We’ve expressed our preference through RFRA for strong religious freedom protections.

  30. There is no cost for Hobby Lobby’s religions beliefs!!! They can believe whatever they want FOR FREE. They don’t have to pay $$$$ to a priest/pastor/agency in order to hold anti-birth control believes. THERE IS NO COST FOR THE BELIEF.

    The only cost in this scenario is the cost of the goods to be purchased – the cost is the money given to the pharmacist/store in exchange for the birthcontrol. The cost for this has been transferred to the employer. That is the only “cost” involved here.

    If any person has a religious belief against purchasing/using a product then it is an infringement of their religious freedom to require them to purchase it for someone else to use.

  31. Another thought: Geddicks’s op-ed basically says “you’re free to believe what you want as long as it doesn’t impose too much of a cost.” Why should that be the test? The 4th Amendment imposes huge costs on crime-fighting and sometimes lets the guilty go free. Why should the cost of religious liberty be treated differently?

    And what’s the limit? Can Hobby Lobby be forced to *stock* birth control? To hand out abortion-payment vouchers to employees?

    And what’s the real distinction between a for-profit business with religious owners and, say, a religious university, or a religion itself? Should the janitors in the Church Office Building be forced to bear the cost of the owners’ objections to the birth control mandate? Isn’t that *too high a cost* to impose on society, regardless of religious belief?

    As all the rhetorical questions indicate, I just don’t see any real religious freedom anywhere in Geddicks’s argument.

  32. ##24 & 27 JKC – Precisely.

    ##33 & 35 Jake Cox – The Establishment Clause is part of the Constitution, which trumps ordinary federal legislation like RFRA.

    As to the second question, the short answer is that there is no 4th Amendment Establishment Clause that prevents shifting around the costs of fighting crime, while there is an religious Establishment Clause that prohibits shifting to others the cost of practicing your own religion.

    The longer answer is that the Establishment Clause prohibits a particular kind of intrusion on liberty characteristic of established or state-supported or -favored churches. At the time of the founding, it was common for people to be assessed taxes, and to suffer penalties if they didn’t observe the tenets of the state church, even if they didn’t belong. The Establishment Clause was intended to prevent the federal government from using its power to do that.

    Being relieved of the burdens imposed by the religous practices of others is all about religious liberty–the freedom to bear your own religous commitments, and not to bear the commitments of others. Forcing someone to bear the costs of someone else’s religion, as would be the case if the federal courts granted Hobby Lobby a RFRA exemption, is thus the very kind of federal government action that the Establishment Clause was meant to prohibit.

  33. SilverRain (31), the government has greater bargaining power than individuals against the healthcare industry in lowering the collective costs that the healthcare industry is imposing on consumers. When people are in urgent need of healthcare, they don’t have the convenience of shopping around for the best bargain. The government also has the power to mandate that people buy health insurance thus increasing the pool of money available to pay for healthcare. With a larger pool of money, insurance companies won’t have to charge such high premiums. But whether you have a voucher system or not, the government would still be mandating that insurance companies cover the costs of contraceptives in their plans. So what if an insurance company had a moral objection to paying for contraceptives? We would be having the same debate.

  34. Jake Cox, exemptions apply under the RFRA when it can be established that a substantial burden would be imposed upon an individual because of their religious beliefs. Where is the burden imposed by the contraceptive mandate? No employer is forced to pay for healthcare coverage for their employees. If employers opt out they are forced to pay a fine and that’s it. And Jax (34), you should take note of that too. The Hobby Lobby isn’t at all forced to pay for contraceptives.

    Besides the Hobby Lobby and their defenders are crying wolf about religious freedoms. The US protects more religious freedoms than practically any other country in the world. The idea that religious freedoms are under grave attack is absolutely preposterous. Clearly, religious freedom is not and cannot possibly be absolute. I am free to found the religion of Steve Smithism. But suppose Steve Smithism advocated the regular ritual usage of cocaine. I couldn’t just up and claim an exemption under the RFRA because I was subjected to substantial religious burden by laws against cocaine possession and usage.

  35. As to the second question, the short answer is that there is no 4th Amendment Establishment Clause that prevents shifting around the costs of fighting crime, while there is an religious Establishment Clause that prohibits shifting to others the cost of practicing your own religion.

    There is no cost for Hobby Lobby owners to be anti-birth control. There is a cost of buying birth control. The only cost being shifted is from the consumer/employee to the employer, to which they object because their religious beliefs comdemn the product they are being compelled to purchase.

    It is a 100% falsehood for the employee to say, “I am paying for my own birth-control because of your beliefs.” NO! You are buying your own birth-control because YOU want to buy birth-control. You are paying the cost for your own desires as you ought to do. Conversely, you ought not be able to say to your employer, “I want birth-control and you have to buy it for me even though your religious beliefs/conscience comdemn it.”

  36. I should expand and clarify on the paragraph I quoted.

    there is an religious Establishment Clause that prohibits shifting to others the cost of practicing your own religion.

    If your religion allows you the use of birth-control then you CANNOT shift that cost onto your employer whose religous beliefs do not allow the use of birth control. That transfer of cost is the ONLY cost be moved. Their is no cost being transfer from the employer to the employee, only the other way around. And it is that transfer of cost that the employer is challenging saying it is unconstitutional.

  37. Prof. Geddicks, regarding the Establishment Clause being in conflict with RFRA:

    (1) RFRA’s standard is the pre-Employment Division v. Smith Free Exercise standard; was the Free Exercise Clause (a part of the constitution) itself “unconstitutional” in light of the Establishment Clause until Employment Division? If Employment Division is overruled (or if it had never happened), how does your argument change?

    (2) I understand the overall academic angst about the tension between Establishment and Free Exercise. And it’s a worthwhile question. But aren’t we just talking about line-drawing, balancing, etc.? (Cue the famous Justice Holmes quote.) And if that’s what this comes down to, then I get it: you think this is on the wrong side of the line. This picks your pocket, to use the Jefferson quip. I disagree. Nor do I think that placing Hobby Lobby and Mardel (a *Christian bookstore* people) on my side of the line is a long-term threat.

    “Your business or your conscience.” That doesn’t matter? I understand that we have to draw lines in pluralistic society. Why is *this* the place to draw the line?

    I *do* agree with a broader sentiment that too much religious freedom could eventually be a threat to religious freedom, depending on the circumstances. If, say, Hobby Lobby managed to establish a religious right to be free from all taxes, despite its for-profit status, and other religiously-owned for-profits took advantage of it — then I can see a popular backlash. So I concede the theoretical possibility, I just don’t see the problem here. Before a sub-agency of HHS issued a regulation (democracy at work!) requiring the twenty FDA-approved forms of contraception in all health plans, Hobby Lobby’s employees had no (federal) right to it through their employer. Hobby Lobby wants to maintain the status quo.

    (3) Quoting from above: “At the time of the founding, it was common for people to be assessed taxes, and to suffer penalties if they didn’t observe the tenets of the state church, even if they didn’t belong. The Establishment Clause was intended to prevent the federal government from using its power to do that.” The current state church (the public purveyor of acceptable morality) is a sub-agency of the HHS, which is assessing taxes and meting out penalties to those who don’t belong.

    (“Ignorant conservative! Anti-government hack! Doesn’t he know the government provides roads, financial security . . . ? The administrative state is an integral part of our democracy!” Actually, I’m not nearly as conservative as this all may sound, but that’s irrelevant.)

    (4) No one’s answered my questions: Can Hobby Lobby or Mardel be forced to *stock* birth control? To hand out abortion-payment vouchers?

    Steve Smith,

    (1) What if you’re a Catholic and you believe the “material cooperation with evil” doctrine, and you believe that paying for an insurance plan that could lead to the destruction of a fertilized egg is material cooperation with evil? Does the government get to tell you, “Tough luck”? If so, why isn’t that a knock on religious freedom? (“Cost of citizenship,” perhaps? Okay, then we’re back to line-drawing.) Or does the government get to tell you, “No, this actually doesn’t violate your beliefs” (which is what DOJ appears to have been doing when defending these lawsuits)? Why does the government get to tell you what you believe?

    (2) Quoting from above: “Besides the Hobby Lobby and their defenders are crying wolf about religious freedoms. The US protects more religious freedoms than practically any other country in the world. The idea that religious freedoms are under grave attack is absolutely preposterous.” I agree that churches (like the LDS Church) have been *partly* crying wolf about religious freedom. We’re not seeing a broad-based attack so much as an attack on two specific issues: gay rights and abortion/birth control. So I don’t see a total collapse of religious freedom in the future.

    But if these two issues really matter to religions today, then why aren’t they important? If “the US protects more religious freedoms than practically any other country in the world,” does that mean churches should quit while they’re ahead? “Sorry, you have already achieved the maximum allowable religious freedom available on Planet Earth. There is no more to be had.”

    * * *

    BOTTOM LINE: Why does *this* religious freedom pose any long term threat?

  38. The conclusion should be that the more government does the more it crowds out and infringes the rights of religions. So start doing less!

  39. Steve Smith #37,
    If the gov’t has greater bargaining power (and it does), why is the cost of insurance for most people going up? The short answer is that freedom, choice, and individual accountability are being reduced. While in the cost scenario, this is about restricting the free market forces that get overall better results, there are also other freedoms being curtailed.
    One of the freedoms is religious freedom which is constitutionally protected. This is another government program that marginally infringes on individual liberty. Taken (government) as a whole, it is a huge burden.

  40. el oso (and Chris), the rate of increase in healthcare costs appears to be slowing. The ACA is not fully implemented either, so we will wait and see what happens.

    As for the government limiting freedom, governments can undoubtedly do that. But you must realize also (and this is the folly of pop-libertarian thinking, which many on this board seem to be huge proponents of) that private organizations, cultural trends, and private individuals can severely limit other individuals’ freedoms. Many say, “oh, well, just move, or get another job.” That simply isn’t an option for many. A case in point in blacks in the south during the era of Jim Crow laws. The cultural trend among whites to treat blacks as inferior was so pervasive that there was little that blacks there could do. Many moved to the north, but at great risk. The federal government stepped in to protect blacks’ equal rights and increase their liberties. As for the contraceptive mandate, this serves to increase the liberty of women to have access to basic healthcare needs.

  41. Jake Cox,

    Even if the RFRA trumps the ACA, that isn’t the point. Professor Geddicks is saying that since the contraception mandate gives employees a right to contraception coverage, to deny that right based solely on the employer’s religious scruples violates the establishment clause, and as he pointed out already, RFRA, even if trumps the ACA, doesn’t trump the establishment clause.

    (Incidentally, I think it is the “threaten religious liberty” language in the op-ed that is tripping up a lot of people: they see “religious liberty” and think of the free exercise clause, and they think that the argument is that employees have a free exercise right to employer-provided contraception coverage, and that the contraception mandate violates that right, when the argument is that permitting the exception violates the establishment clause by forcing an employee to subsidize the employer’s scruples by giving up something that he is entitled to under the law. I understand the argument that the establishment clause itself further religious liberty, but I think if the argument were phrased in terms of the establishment clause, rather than in terms of religious liberty, people would understand it better, for whatever that is worth.)

    But it’s not a foregone conclusion that RFRA would trump, even if it did apply. All RFRA means is that IF the ACA substantially burdens religious belief, then the government has to show that ACA is narrowly tailored to a compelling government interest. I’m aware of the “strict in theory fatal in fact” quip, but courts have shown at least is marijuana cases that they are perfectly able to find that a law satisfies the Lemon/RFRA standard when they want to. Given that enormously complex nature of the healthcare industrial complex, it is not impossible that a judge that is sympathetic to the ACA would find that it satisfies the RFRA. (Or that RFRA doesn’t even apply to corporations in the first place, or that a law that only conditionally regulates behavior (IF, you hire employees, and IF you choose to provide coverage instead of paying the tax penalty, THEN you have to provide contraception) doesn’t really substantially burden religious belief.

    Your question to Professor Geddicks about whether his establishment clause argument would be different if Smith did not exist is an interesting hypothetical. But my two cents is that it’s pretty clear that when it comes to establishment vs. free exercise, the trend since the 1970s or 80s is that establishment clause always wins, and the more robust free exercise jurisprudence is long gone relic of the 1960s. That’s why Lemon is dead, and that’s why Title VII’s religious accommodation jurisprudence has been reduced to applying only as long as the burden on the employer is de minimis. So the question is really academic. My two cents, anyway.

  42. This thread has about wound down, so perhaps these comments could conclude it.

    JKC #45 is an excellent overview. I do not believe (and the op-ed does not suggest otherwise) that employees have a *constitutional* right to full coverage of contraceptives–nor do they have a *constitutional* right to social security, the minimum wage, etc. But employees do have a legal (statutory or regulatory) right to these benefits, and it constitutes an Establishment Clause violation to force them to forfeit these legal entitlements solely to enable the practice of someone else’s religion. Freedom from the religious choices of others is also a dimension of religious liberty, even if it entails merely statutory rights. Like it or not (and many of you don’t like it, I get it) the ACA and the contraception mandate are laws of the land, and since they’re in force, people are entitled to receive their benefits and not to forfeit them because of their employer’s religious beliefs.

    A final note: There seems to be some nostalgia among some commenters for the pre-Smith era in which exemptions were formally required by the Free Exercise Clause, but in practice largely denied. But even the Court’s pre-Smith Free Exercise cases exhibit a concern for imposing the costs of religious accommodation on third parties who don’t benefit from it, as do the Court’s Title VII cases.

  43. OK, I’m convinced. Professor Gedicks is right. There is a threat to religious freedoms posed by for-profit businesses demanding an exemption to the contraceptive mandate: the establishment clause holds that people are to enjoy freedom from religion and not be forced to bear any burden that may result from one’s religious practice. The Hobby Lobby and other for-profit businesses cannot hire, deny employment to, or fire anyone based on their religious beliefs. If they choose to offer healthcare coverage, they cannot force any person to bear extra costs of contraception which would be otherwise covered by any other employer offering coverage. Employees now have a right to the coverage of contraception by healthcare plans that their employers offer. The contraceptive mandate has been passed by majority vote in the legislature and has been deemed constitutional by the judiciary. Any challenges to the mandate must go through the legislature. So I guess the Hobby Lobby is barking up the wrong tree.

    Now to answer the question posed by Jake Cox (41), “Why does the government get to tell you what you believe?” The government cannot make any law respecting the establishment of a religion, so it cannot force you to believe anything. It isn’t asking people to accept contraception as moral. But at the same time the government protects individuals from being forced to bear any burden of others’ religious beliefs. That means it protects employees of for-profit businesses from being forced to bear the burden of a religious belief against contraceptives which would be imposed on them by their employers trying to deny benefits that employees are entitled to by law in the event that healthcare coverage is provided as part of their employment packages.

Comments are closed.