Pending before the Supreme Court at the time of this writing are two cases that raise some fundamental questions regarding the relationship between the government and religion in a secular state. The court’s decisions in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, which will likely be issued by the end of June, may indicate the extent to which religious beliefs can be used as a basis for avoiding compliance with government policy.
In these two cases, for-profit corporations are challenging the federal regulation that requires employers to provide contraceptive services to their employees via their health-care plans. The regulation in question was issued by the Department of Health and Human Services (HHS) as part of its implementation of the Affordable Care Act (a.k.a. Obamacare). The corporations allege that this regulation burdens their religious beliefs because the individual corporate owners (in both cases, the principal shareholders) object on religious grounds to at least some forms of contraception. This burden supposedly violates the Religious Freedom Restoration Act (RFRA). RFRA, enacted in 1993, prohibits the federal government from substantially burdening a person’s exercise of religion absent a compelling interest.*
One very interesting issue presented by these cases is whether for-profit corporations can be regarded as possessing religious beliefs. The notion of a for-profit corporation being entitled to the free exercise of religion is a peculiar one, to say the least. A corporation doesn’t engage in religious practices, as these are usually understood. A corporation doesn’t pray, receive the sacraments, or participate in worship services. Does a commercial corporation even have a soul that can be saved?
Recognizing the right of a for-profit corporation to claim a religious identity would work a revolution in First Amendment jurisprudence. However, I’m actually more concerned about the other, underlying issue in these cases, namely, whether any entity, including religiously affiliated nonprofits, has a right to be exempt from providing government-mandated insurance coverage for its employees on the ground that this burdens religious beliefs. Whatever the religious status of for-profit corporations, some nonprofit organizations that are closely associated with a religious body, such as parochial schools, have been recognized as possessing a religious identity. Even if the Supreme Court concludes that Hobby Lobby and other for-profit companies cannot challenge the regulation, there are dozens of religiously affiliated nonprofit entities that have brought lawsuits asking to be relieved of any obligation to provide, directly or indirectly, the mandated health-care coverage. So the issue of the extent to which the government needs to accommodate religious beliefs will have to be confronted eventually.
Before discussing the merits of the religious-exemption claim in the context of the contraceptive mandate litigation, let me step back a moment and ask: Why should we recognize any exemptions from general legal obligations on religious grounds? Is there something special about religious belief that requires the religious to be exempt from rules and regulations they find objectionable? Note that I am not suggesting that the government can specifically try to suppress religious beliefs and practices through legislation or other government action. I’m a firm believer in freedom of conscience. So the government should not and, because of the First Amendment, cannot interfere with religious bodies conducting worship services and other religious activities. But what happens when the religious insist their beliefs affect their dealings with others? Can a long-haul truck driver refuse to work with a female partner because doing so would violate his religious beliefs? Can a nurse refuse to participate in certain medical procedures, such as organ transplants, because of religious scruples? Can a state-employed counselor invoke religion as grounds for declining to assist gay clients? (These examples reflect actual cases.)
The classic example of a religious exemption—and for a long time the only one recognized under federal law—is the one for conscientious objectors to combat roles in the military. The federal government has exempted Quakers and others who have objected to participating in combat since the time of the Civil War, that is, since the time the United States first instituted the draft. One very practical reason for this exemption is that it seems pointless to train and arm a person who is going to refuse to fight. Of course, the government could send the objector to prison, but that also seems pointless. What the government has done instead is to require the objector to perform alternative service either in a noncombat role or in a civilian occupation.
But the conscientious-objector example actually highlights one of the fundamental flaws in the notion that religious beliefs are entitled to special consideration. After all, can’t someone be a pacifist on nonreligious, moral grounds? This, of course, was the issue confronted by the Supreme Court in a couple of cases during the Vietnam War. In the case that most squarely raised the issue of the right of a nonreligious person to claim conscientious-objector status, Welsh v. United States, 398 U.S. 333 (1970), the court ruled that a person is entitled to an exemption as a conscientious objector if the person objects to war based on moral or ethical beliefs that have “the strength of traditional religious convictions.” In his concurring opinion, Justice John Marshall Harlan argued that any other outcome would have violated the establishment clause.
Claims for religious exemptions outside the context of compulsory military service began to proliferate after the passage of Title VII of the 1964 Civil Rights Act, which prohibited employment discrimination based on religion. Some employees claimed, for example, that they were entitled to be absent from work on the day of their Sabaath, whether that be Saturday, Sunday, or some other day. However, the courts found that there was no duty to accommodate the religious beliefs of employees unless doing so did not burden others.
In Sherbert v. Verner, 374 U.S. 398 (1963), the Supreme Court did hold that it violated the free exercise clause to deny a Seventh-day Adventist unemployment benefits because she refused to work on Saturday, but in this case granting the exemption did not work any hardship on others. Note that the court did not rule that the employer had to rehire the worker, only that she could collect unemployment. Religious claims for exemptions from rules and regulations that applied to everyone generally did not fare well in the courts if there was any indication that granting the exemption might cause harm to others.
However, the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), which was decided under the free exercise clause, caused a backlash. In this case, the Supreme Court upheld the denial of unemployment compensation benefits to two Native Americans who had been fired after smoking peyote as a part of a religious ceremony. Many regarded this as an unjustifiably harsh result because it was unclear what harm would be caused by granting benefits to these discharged workers. The congressional response was RFRA, which perhaps, in a roundabout way, proves the maxim that hard cases make bad law.
Leaving RFRA aside for the moment, when should we accommodate religious beliefs? When it makes no significant difference to anyone else. In other words, religious exemptions from general rules and regulations should be limited to self-regarding behavior. To paraphrase Thomas Jefferson, it neither picks my pocket nor breaks my leg if a Jewish student wan
ts to be absent for Rosh Hashanah, if a Muslim clerk at CVS wears a hijab, or if a Hindu prisoner insists on a beef-free meal. I don’t care. Any cost to others from such accommodations is de minimis. I do think nonreligious individuals should be able to insist on comparable rights if they assert some plausible moral basis for their claim, such as a commitment to being a vegan, but other than this qualification, I take no issue with accommodation of religious practices that are truly self-regarding.
This brings us back to the contraceptive mandate litigation and the interpretation of RFRA. One must concede that the wording of RFRA is vague enough to provide at least superficial support to those challenging the contraceptive mandate. Although what constitutes a “substantial burden” on one’s religious beliefs is not clearly defined under the statute, unfortunately courts have been interpreting the term broadly. That said, in my view, the HHS mandate cannot plausibly be regarded as placing a substantial burden on anyone’s exercise of religion. The regulation does not require anyone to use contraception, obtain contraception, or even distribute contraception to coworkers or employees. For nonprofit employers who present a religious objection, there is not even the requirement to fund the health insurance that provides the contraceptive coverage. What those employers objecting to the mandate are effectively complaining about is not being able to control the conduct of their employees, some of whom may choose to use contraception. However, being denied the ability to control the conduct of others such that they conform to one’s own religious beliefs does not constitute a burden on a person’s exercise of religion. If employers prevail on their challenge to the contraceptive mandate, they would be permitted to use their religion to deprive their employees of benefits these employees would otherwise be legally entitled to. Any interpretation of RFRA that allows it to be used as a vehicle for imposing someone’s religious views on others and causing them harm would result in a palpable clash between RFRA and the establishment clause.
Accommodation of religious beliefs cannot be distorted into the privileging of religious beliefs—not without undermining the core principles of a secular state.
* Note that as originally enacted, RFRA also applied to state and local governments. However, in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court ruled that RFRA was unconstitutional as applied to state and local governments.