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Exempting Hobby Lobby and Conestoga Wood from Obamacare’s contraception mandate would be an unconstitutional establishment of religion because it would require third parties — employees of the companies — to pay to accommodate the religious views of the companies’ owners. That, in a nutshell, is the argument made by BYU law professor Frederick Gedicks and Utah Supreme Court clerk Rebecca Van Tassel in a forthcoming article in the Harvard Civil Right-Civil Liberties Law Review.

The argument turns on the nature of the Religious Freedom Restoration Act (RFRA), which provides the principal basis for the Hobby Lobby and Conestoga Wood lawsuits that the Supreme Court will adjudicate this session. RFRA was passed in 1993 to undo the limit the Supreme Court’s 1990 Smith decision imposed on judicial protection of the constitutional right of religious free exercise. Smith, the pride and joy of Justice Antonin Scalia, determined that any neutral and generally applicable law — i.e. any law not directed against a specific religious practice or practitioner — was beyond the reach of judicial redress as a violation of the Free Exercise Clause. What RFRA did was instruct the Court to employ its previous standard of adjudication, which required the government to demonstrate a compelling state interest in order to restrict religious liberty.

The Court didn’t much appreciate RFRA, and in Boerne (1997) ruled that it could not be applied to state laws. But in Gonzales (2006), the justices decided that it did provide for what’s known in the trade as “permissible accommodation” of religion with respect to federal law — the point being that if Congress wants to make an across-the-board accommodation of religion to laws it itself passes, it can do that (up to a point). But such accommodation does not (re-)establish a constitutional right to have the courts find a compelling state interest in order to sustain a law restricting free exercise, only a statutory requirement to do so.

What difference does it make? The critical point is that a statute-based claim is more easily rejected on constitutional grounds than one based on a constitutional right. Under Smith, Hobby Lobby and Conestoga Wood could not claim a First Amendment right to be exempted from the contraception mandate, and the statutory authority they do claim is highly vulnerable to the charge of violating the First Amendment’s ban on religious establishments.

To be sure, as Gedicks and Van Tassell note, Establishment Clause doctrine is widely recognized to be “unstable, inconsistent, and incoherent.” Yet the Court has shown remarkable consistency in holding that the material costs of a permissive accommodation of religion cannot be shifted to third parties who don’t share a commitment to the religious practices or beliefs being accommodated. And that’s certainly the case for thousands of women working for Hobby Lobby and Conestoga Wood who would be deprived of the benefit of contraceptive coverage without additional cost if the two companies were to be given a RFRA exemption to the mandate.

The companies contend that RFRA gives their religious liberty priority over the cost to those “who believe and live differently,” write Gedicks and Van Tassell. “But this is also a violation of ‘religious liberty’—the liberty, long protected by the Establishment Clause, to live one’s life free of the religious commitments of others. And unlike statutory claims asserted under RFRA, this liberty is protected by the Constitution.”

In other words, what Smith took away, RFRA cannot really restore.

10 Comments

  1. The whole concept of “corporate religion” is ridiculous. A company is not its owners. People set up business entities to shield themselves from personal and financial liabilities of the companies they created. That shield only exists due to separation of the company from the personal life of the owner. Companies like Hobby Lobby already reap the benefit of this separation they have to accept the price that it comes with as well. That they are not their companies.

    There is also no sane way a company can have a religious belief without crossing the lines into sectarian discrimination and violating the religious freedom of its employees under the guise of expressing the company’s own.
    Religion is always a personal matter.

    Here are some examples of how corporate religion could be expressed using Hobby Lobby’s arguments:
    -All female employees must wear hijabs at the workplace
    -Wearing of crucifixes, Stars of David or any other religious jewelry is forbidden
    -The company is closed on Diwali but will remain open on Christmas. There will be no time off permitted for Christmas.
    -All employees can pick up their paychecks after attending Mass
    -The company will not pay for insulin since many forms are derived from pigs.
    -Attendance at the Hamas Fundraiser is mandatory
    -All paychecks shall be automatically tithed 10% to the church

    • The rest of your list is true but insulin is human insulin since with gene splicing one can insert the human gene into bacteria and have them make by the gallon. No one has used animal insulin for decades. :-)
      geriatricnurse

  2. “women…who would be deprived of the benefit of contraceptive coverage without additional cost if the two companies were to be given a RFRA exemption to the mandate.”

    It is the government that promised these women this benefit. Let the government fulfill this promise directly. I don’t like this solution either–because I see no good reason why the taxpayer should pay for contraceptives, sterilization or abortion–but that is less egregious than politicians making promises to gain votes, and then expecting someone else, conscience be damned, to keep their promises.

    • Rolando Rodriguez

      Armed Forces personnel, federal workers and elected government representatives are funded by taxpayers. The “government” promised them benefits. We are the ‘government.” We elect the politicians that made promises to gain votes. Who should we expect to keep the “promises”?
      Meanwhile, as that responsibility is discussed and assigned, women are becoming pregnant. Some unwillingly, rape and incest come to mind. Others choose to delay pregnancy for economic, social or health reasons. Some welcome motherhood while others do not hear that call. There’s no easy answer, Fr. Martin Fox, but we are our sisters’ keepers.
      Paz y Bien, Rolando, OFS.

    • A single payer system was proposed and blocked by Congress under Clinton. This is the best compromise that Congress could pass and no it is not perfect. We desperately needed to do something about the under insured and those without insurance. This is the best that all parties could agree. As for the employer, Catholic Bishops NEVER objected or raised concerns as more and more corporations covered contraception. The bishops just said to Catholics don’t use that part of the plan. The bishops also did not condemn or do anything as many Catholic institutions offered contraception as part of their health insurance as has Marquette University and Santa Clara University have done for many years. Even the whole argument of cost is bogus. We are talking about one drug class out of a great many. Drug Formularies are very large and cover every disease as well as the $5000 a dose chemotherapy drugs. (One always need far more than one dose.) In addition health insurance covers hospital bills which quickly run up in the thousands with one ER visit. The ICU is thousands a day and that does not include labs and drugs; it is just the nursing care and the equipment whether used or not. While the most expensive contraception costs $1000 a year without any insurance discounts from drug companies. I doubt Hobby Lobby pays 100% of the premiums. So the employee can be said to be paying 100% of the cost of contraception through the employee’s contribution of the health insurance premium. Which is why I think it very arrogant for Hobby Lobby to complain. It is a bit like complaining about the cost of three drops of paint on the new car. Yes, one can say that it included in that new car cost but really the new car cost is the engine, transmission, brakes and everything else that makes a car go and be safe. The paint’s contribution is so small to the entire cost of the car that complaining about is laughable. Likewise with health insurance. The insurance covers the hospital costs and doctor visits, labs with the drug formulary last. You are not complaining about the entire drug formulary but one very small part of it. For example a diabetic on insulin and taking three blood pressure medications along with a statin can have drug cost of over $7000 a year. All that while using the cheap stuff as generics whenever possible. In comparison contraception’s annual costs are far far less than the annual drug costs to treat many common conditions.
      geriatricnurse

  3. Nanabedokw'môlsem

    Two things, Fr. Fox.
    The employer is not providing contraception. The insurance company is, if and only if the employee so chooses to use the insurance; thus the employer facilitates the employee’s decision, exactly as the employer has from the inception of the employment relationship with those immoral, insidious, sinful paychecks.
    Financial enablement of sinful purchases is inherent in employment, and not unique to insurance. Insurance is indistinguishable from a raise in pay.

  4. Maybe the administration should just be more explicit in writing laws…lets try…”No practicing Catholic, Christian or Muslim, no person whole believes in revealed truth or the dignity of the each person regardless of circumstance shall be permitted to own, operate or lead a business …or just for safe measure…participate in the public sphere.”

    I love how all of these liberals claim how open minded they are until it comes to any belief that the dignity of the person is in the person not in the WILL. On a side note, I wonder why agnostic or liberal websites aren’t courageous enough to employee devote individuals to constantly challenge their world view.

    Nanabedokw’môlsem,

    In evaluating moral actions there is a facility called prudence. Just because you think you can draw a straight line between two activities does not make them morally equivalent. Btw are you against the laws in CA and WA requiring doctors and pharmacists to perform abortions or provide abortive agents? Or do you have other reasons for being for these laws?

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