The Establishment Clause: A Simpler Answer to the Contraception Question?

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

What if the battalions of lawyers, pundits, and politicians have missed the easiest—and possibly best—argument against “corporate religious liberty rights” in the high-profile legal cases that challenge the contraception mandate in the Affordable Care Act?

That appears to be what has happened, according to two legal scholars in an article that will be published in the Harvard Civil Rights-Civil Liberties Law Review titled “RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion.”

Their argument boils down to this: The U.S. Constitution prohibits a for-profit business from pushing the burden of their (or their owners’) religious practices onto an unwilling third party. And by refusing to allow employees to access contraceptive coverage under their health insurance plans, companies like Hobby Lobby are doing just that.

It’s not just Hobby Lobby looking for an Obamacare out, however. In total, 47 for-profit companies have filed lawsuits against the Obama administration in courts around the country, each requesting an exemption from the birth control benefit, which requires that all employer-based health insurance plans cover the full range of preventive health-care services available under the Affordable Care Act, including contraception without co-pay or deductible. The Supreme Court will hear two of these cases—those brought by Hobby Lobby and Conestoga Wood Specialties Corporation—and, after oral arguments on March 25, will likely make its ruling this summer.

Hobby Lobby and Conestoga Wood’s claims are two-fold. First, both corporations claim that the birth control benefit is a violation of the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” Second, Conestoga Wood (but not Hobby Lobby) claims that for-profit corporations have free exercise rights under the Free Exercise Clause of the First Amendment, and that the birth control benefit violates these rights.

Much ink has been spilled about the relative merits of the RFRA and Free Exercise claims. (I’ve written about it extensively, here and here, as have RH Reality Check’Jessica Mason Pieklo and Jodi Jacobson.) Questions about whether the mere participation in an insurance plans that provides access to contraception constitutes a substantial burden on religious freedom have been debated ad nauseum.

Opponents of the birth control benefit accuse the Obama administration of waging a “war on religion” or trampling religious liberty. Exasperated proponents, on the other hand, respond that the Obama administration is not trampling religious liberty, but rather trying to eliminate gender discrimination in health-care services while being as accommodating of religion as it possibly can be without trampling on the rights of women. Opponents often respond that taxpayers shouldn’t have to pay for women to have sex, and that women can simply head to their local drugstore and buy whatever contraception they need. The debate tends to devolve from there.

But is there another argument that is missing from the mainstream debate about these cases? One that might settle the contraception conundrum without requiring complicated inquiries about substantial burdens and compelling governmental interests, or mind-numbing philosophical discussions about whether or not corporations are people that can exercise religious liberty?

Several legal scholars and professors think that there is, and have pointed out that an analysis of Hobby Lobby and Conestoga Wood’s claims under the Establishment Clause of the First Amendment may be just the argument that birth control benefit enthusiasts are looking for.

In their forthcoming law review article, Frederick Mark Gedicks, a professor at Brigham Young University, and Rebecca G. Van Tassell, a Utah Supreme Court law clerk, present a compelling case that the Establishment Clause prohibits precisely the sort of religious exemption which Hobby Lobby, Conestoga Wood, and other for-profit corporations seek, and obviates the need to even engage in a RFRA or Free Exercise Clause analysis in the first instance. Why? Because the Establishment Clause prohibits the government from accommodating religion and granting a religious exemption, if granting that exemption would impose substantial burdens on anyone who does not benefit from that exemption.

But first, a brief explanation of the First Amendment is in order.

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Within this amendment are two clauses: the Establishment Clause, which prohibits Congress from making a law respecting an establishment of religion, and the Free Exercise Clause, which prohibits Congress from making any law that prohibits the free exercise of religion.

The Free Exercise Clause essentially allows people to avoid following generally applicable laws if they are doing so for religious reasons. This is what Conestoga Woods and many other for-profit companies that have raised Free Exercise claims are asking; they want the Supreme Court to tell them that they are exempt from heeding a generally applicable law (the birth control benefit) based on their religious belief that contraception is a sin, and they don’t want to participate in it.

But forget the Free Exercise Clause for a moment—what about the Establishment Clause of the First Amendment?

As Gedicks and Van Tassell write:

[N]o attention has been paid to the Establishment Clause implications of RFRA exemptions from the Mandate. Nothing in the fast-growing literature on the Mandate discusses whether RFRA exemptions might violate the Clause’s limitation on accommodation of religion, and the question has been overlooked by every appellate opinion holding or arguing against the Mandate’s legality under RFRA.

In other words, courts, lawyers, and supporters of the birth control benefit supporters alike seem to be ignoring what may be the best possible argument for urging the U.S. Supreme Court to reject Hobby Lobby and Conestoga Wood’s exemption request, and that is this: Allowing these companies an exemption would impose significant burdens on their female employees (as well as the wives and daughters of their male employees) and is, therefore, unconstitutional.

As Professor Gedicks explained in a recent op-ed for the Washington Post:

If the court grants these businesses the religious exemption they seek, it essentially would be directing the women who work for these businesses to bear the cost of the owners’ anti-contraception religion. After all, but for the business’s religious objection, the cost of contraception would be fully covered by insurance.

According to Gedicks and Van Tassell, the Establishment Clause flatly prohibits imposing these sorts of burdens on third parties—burdens which, Gedicks notes, can include up-front costs of contraception that can be close to $1,000 per year. As such, we don’t even have to begin to argue about RFRA, substantial burdens, and compelling interests, because no statute—not even RFRA—can be applied in a manner proscribed by the Establishment Clause (because in the constitutional chain of command, the Establishment Clause trumps RFRA).

Moreover, as Gedicks and Van Tassell note, citing the California Supreme Court’s decision in Catholic Charities of Sacramento, Inc. v. Superior Court, the case upholding California’s state contraception mandate, the U.S. Supreme Court has never approved these sorts of exemptions when to do so would detrimentally affect the rights of third parties.

The question becomes, then: If the Establishment Clause prohibits the relief that Hobby Lobby and Conestoga Wood are asking the Supreme Court to grant them, why has this particularly argument gone woefully ignored? The answer to that question may lie in the way in which these cases are being litigated, as professors Micah Schwartzman, Richard Schragger, and Nelson Tebbe point out in a recent piece published on the blog Balkinization:

One answer points to the way in which the existing cases have been litigated. All of them involve large corporations and their religious employers raising challenges to federal regulations. There are no cases in which employees have intervened to defend their statutory rights and to challenge preliminary injunctions that threaten to impose significant costs on them.

Without an employee willing to potentially risk her job by intervening in these cases and asserting her right to be free from the potentially unconstitutional burdens that Hobby Lobby and Conestoga Wood seek to impose on her and other similarly situated employees, it falls to the government to make the Establishment Clause argument on behalf of these employees. And, thus far, the government has not done so.

Schwartzman et al. speculate as to why that is the case:

Perhaps the government’s lawyers did not want to argue that application of a federal statute, RFRA, is unconstitutional, even as-applied. Or perhaps the government thinks that employees’ claims are subsumed within its defense of the mandate as justified by a compelling interest in guaranteeing access to contraception.

It remains to be seen whether the Establishment Clause argument will make an appearance in oral arguments before the Supreme Court. If it does not, the Supreme Court may very well make a decision without reference to an argument that has the potential to foreclose the relief sought by Hobby Lobby and Conestoga Wood and protect the rights of their employees. And because this decision will have wide-ranging implications for all birth control benefit lawsuits, for-profit companies may be granted the right to impose their religious beliefs on their employees, thus stripping their employees of the right to coverage of all preventive care, including contraception, guaranteed to them by Obamacare.

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  • xuinkrbin

    Like many headlines ending with a ‘?’, the answer is, “No”. The Supreme Court has long held general religious exemptions do not violate the Establishment Clause.

  • xuinkrbin

    To back up My reply, consider Corporation of Presiding Bishop v. Amos (1987) and walz v. Tax Commission.

    • Imani Gandy

      I don’t think the answer is as simple as that. See Estate of Thornton v. Caldor (1985) and Cutter v. Wilkinson (2005). These cases (plus Amos) are precisely why I posited my headline as a question. In fact, Eugene Volokh and Schwartzman et al. have been engaging in a very interesting debate about this, one that should be presented to SCOTUS, in my view.


    • Joe.02

      Gedicks and Van Tassell explain why such cases provide a different situation – it is not that “general religious exemptions” THEMSELVES violate the Establishment Clause.

      It is that the particular burdens all things considered of this particular one do. It is suggested you read their argument. You might still disagree with the reply has to be more nuanced than this.

  • Rabbi Dennis S. Ross

    This is a great article. That’s the whole point, from a moral perspective, In this situation, the decision of the person who earned the insurance and needs the birth control has a higher moral standing than her boss. The boss just has to fill out a form. The worker owns the insurance and needs health care. She comes first.

    • Bearpaw01

      “… the person who *earned* the insurance …”

      This is one of the things that conservatives happily gloss over in this discussion. They tend to refer to insurance as something that employers “give” to employees, I guess out of the kindness of their hearts. But no, it’s *earned*. The government has defined the minimum health insurance plan, just as it’s defined the minimum wage.

      How are Hobby Lobby et al arguments any different from saying, “No, you can’t use any part of the minimum wage paycheck you earn from us to buy contraception”?

  • UnEasyOne

    Pregnancy, childbirth and insurance for the resultant child/children are expensive! Therefore coverage of birth control is no burden for insurers, it’s a cost saving benefit – for them and others in the insurance pool. If all the insured women get pregnant, costs – and therefore premiums – will skyrocket.

    If I am a single guy, why should I be forced to pay extra to support some religious fanatic’s desires? That’s also a violation of MY first amendment rights.

    • UnEasyOne

      PS: Corporations are NOT people, and they should be afforded NO constitutional rights – especially when those rights are in conflict with actual, living, human beings. We need an amendment that states that clearly.

    • Joe.02

      I think the challenges here weak, but you will be forced at times to pay extra — if the
      ‘fanatics,’ e.g., don’t believe in contraceptives and have many more children, you will help pay the insurance to pay for the more expensive births and the resulting children in various respects.

    • Churchlady320

      You are NOT paying extra. There is a package which includes all manner of things you will never need just as women don’t need PSA tests and other procedures for men alone. It is just THERE. You do NOT pay extra for birth control, for anything. It won’t save you a dime if it were removed, so the issue is for employers – get over it because it costs you nothing and its use is up to the employee whose HEALTH CARE IT IS.

  • aspromised

    These companies choose to compete and want all the benefits of participating in the marketplace, but won’t behave like grown-ups. Also, surely SCOTUS can see the slippery-slope here because the same principle can then be used by any religions (ex. blood transfusions, transplants).
    Employers do not OWN their employees and yes, we should then fully expect to see owners sued by their workers as the article suggests — and rightly so!

    • Churchlady320

      Exactly. And because others such as Jehovah’s Witnesses who personally don’t believe in transfusions understand that the law does not make them pay for it – that it is just IN the law for anyone to use or not – this will be a very important distinction. It is absurd for any religious group to demand an exemption from something they already don’t pay for.

  • Trollface McGee

    An interesting and valid argument.
    I would still like to see an Establishment Clause challenge – the government, by allowing corporations to deny health care based on the corporation’s religious beliefs is denying the employees their religious freedom. After all, nothing says that religion = denying birth control – what about all the people, religious or not, who don’t believe there is anything wrong with abortion and BC? Why do they get their religious rights trampled on.
    I think the right has been successful for a long time in equating religion with right-wing political beliefs but that is not reality. Millions of religious people do not share those values and atheists also have the right to not have someone else’s religious beliefs forced on them.

  • Joe.02

    I don’t know if the argument will win out but it at the very least is part of the ultimate problem here. Looked closely, the other side basically either is going to result in special exemptions (there already is an “abortion exception” that is being used here by challengers to apply to something that objectively speaking is not an abortion — Plan B) or such a broad exemption that consistently will require for profits to discriminate by sex or race on religious grounds.

    The burden on employees to me also raises free exercise concerns — as U.S. v. Lee, which to me still makes this an easy case, says: “Granting an exemption [here] to an employer operates to impose the employer’s religious faith on the employees.” The result burdens free exercise rights of the employee, who wishes to use their own money earned from working in a way to best protect their health pursuant to their own religious beliefs.

  • Churchlady320

    Businesses and religious organizations accepting tax dollars to operate all come under the provisions of the Civil Rights Act that requires equal accommodation not for just race but also religious beliefs (including having no religious beliefs). There is simply no justification for any entity trying to weasel out from their obligation not to discriminate against their employees. Religious groups have the option of not taking tax dollars to do their business – hospitals, colleges and universities, charities may be funded exclusively as religious organizations and thus hire exclusively from their religious pool and operate as religious organizations that are exempt. But once they take tax money, they must honor this nation’s diversity. All businesses must do the same.

    • noxioux

      So, how much tax revenue do you think Hobby Lobby receives for operational expenses? I’m thinking the amount should be somewhere near what, zero? You have no more right to tell them to pay for contraception than they have to force you to buy craft paper with pictures of baby Jesus on it.

      So, while you’re stripping the corporations and other collective entities of the religious protections under the 1st Amendment, are you all going to strip them of the rest of their 1st Amendment rights? Maybe you should go ahead and strip them of their due process rights while you’re at it. If you’re going to declare them non-persons, then they can’t have any constitutional rights. Right? Make sense?

      Fortunately, it doesn’t make any sense. The fact is, there’s TONS of precedent defending corporate personhood, and they’re protected under the constitution. Deal with it.

      The corporation has no right to impose it’s religious beliefs on it’s employees. But conversely, the government has no right to impose undue restrictions on the religious beliefs of these collective entities either.

      So really, the solution is easy. Scrap the poorly crafted, ill-conceived law that’s obviously flying in the face of the establishment clause in both directions.

      We need to be tolerant and gracious about our differences. But honor doesn’t mean you have the right to force me to pay higher premiums to pay for your morning-after pills.

  • noxioux

    After the flying triple-cartwheels they turned to allow the ACA under the commerce clause, I doubt this will give them any trouble at all.