The HHS Mandate and Judicial Theocracy

 
 

If we are to preserve our First Amendment rights, judges must refrain from telling plaintiffs challenging the HHS mandate that they’ve got their theology wrong.

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Are judges more competent to determine what a particular religion requires or forbids than that religion’s own leaders or adherents? Most would think not. Yet that’s what two of the recent rulings related to the Health and Human Services contraception, sterilization, and abortion-drug mandate seem to claim.

Recently, in Hobby Lobby Stores, Inc. v. Sebelius, federal district judge Joe Heaton of the western district of Oklahoma ruled against the Greens, the devout Christian owners of Hobby Lobby arts and crafts stores. The Greens strive to operate their company in accordance with Christian principles, paying generous wages, closing earlier than most other stores so that employees can spend time with their families, and not opening on Sundays.

Like many Christians, the Greens object to the HHS mandate’s requirement to offer coverage for certain “emergency contraceptives,” such as Ella and Plan B, which they believe cause early abortions. These drugs can sometimes work by preventing or interfering with the embryo’s implantation, thus triggering a miscarriage.

The Greens claim that they cannot comply with the mandate because their religion forbids them to facilitate access to abortion. The mandate went into effect January 1, and since the Supreme Court denied the Greens' subsequent request for emergency injunctive relief, remaining faithful to their religious beliefs may cost them up to 1.3 million dollars per day in fines.  It is worth noting that Judge Sotomayor's denial of Hobby Lobby's appeal is no indication of how the Supreme Court will ultimately rule on the HHS mandate cases, because the standard for granting emergency relief is more stringent than the standard for granting a religious exemption under the Religious Freedom Restoration Act (RFRA).

In disagreeing with the Greens’ claim that compliance with the mandate would substantially interfere with the practice of their religion, Judge Heaton followed the reasoning Judge Carol Jackson (of the eastern district of Missouri) employed in her decision earlier this fall, dismissing a suit against the mandate brought by Frank O’Brien, a devout Catholic who owns a small manufacturing business in St. Louis.  Although Jackson's ruling has since been overturned by the Eighth Circuit federal appeals court, Heaton's ruling was affirmed by the Tenth Circuit, and an examination of the faulty reasoning that both judges employed is still relevant as these cases make their way toward the Supreme Court.

The core of Judge Jackson's argument is the following: “The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients …, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion.” Jackson goes on to claim that subsidizing these objectionable services is no different from paying an employee's salary, which the employee may then use to purchase contraception or procure an abortion. Judge Heaton agrees.

Yet paying a salary and providing insurance coverage for certain services are far from equivalent. The difference is analogous to the difference between giving cash to someone, and giving, say, a gift certificate to a steakhouse. In the former case, the money you give could be used to buy steak, but there is no essential tie between your gift and that particular use of it. In the latter case, you are giving a voucher for the procurement of a specific and limited range of goods or services; there is an intelligible link between your gift and the use to which the recipient might put it.

If you believed killing animals to be morally wrong, you would reasonably think it wrong to give someone a gift certificate to a steakhouse, even though the recipient might choose not to use it, or not to use it in ways that you find objectionable—even steakhouses usually include some vegetarian options on the menu.

The point of the analogy is that there are different ways in which one can “enable” wrongdoing, and not all of them are wrong. After all, refraining from killing someone, and helping to sustain a person’s life by providing shelter or nourishment, are both ways of “enabling” that person to engage in wrongdoing, just as paying a salary “enables” someone to buy objectionable products or services. Enabling wrongdoing is wrong only when there is an intelligible link (of which the enabler is aware) between the enabling and the wrongdoing.

Applying this reasoning to the case at hand, it becomes clear that while paying a salary has no intelligible link to any particular use of that salary, giving insurance—a voucher for a specific range of products and services—does have an intelligible link to precisely those products and services for which it may be used. If, on the other hand, Jackson and Heaton are right that there is no difference between paying a salary and offering insurance coverage, then employers would also have no reason to object to a mandate requiring that all health plans cover surgical abortions.

Jackson and Heaton's logic is therefore inherently flawed: giving money, a perfectly fungible good, differs significantly from giving insurance, which has an intelligible link to a limited range of products and services.

But even if the reasoning were sound, it is nonetheless problematic because its subject matter—moral theology—does not belong in a court decision at all. By using this argument to deny that the mandate constitutes a substantial burden on religious practice, these judges are stepping well outside their proper area of competence. They are making a decision not based on legal reasoning, but on philosophical and theological judgment.

It is true that applying the RFRA—which prohibits the federal government from substantially burdening religious practice unless there is a compelling state interest at stake and there is no-less-burdensome way of achieving that interest—requires judges to ascertain the existence of a substantial burden on sincerely held religious beliefs. In doing so, however, judges should not take it upon themselves to weigh the plausibility or centrality of a particular belief within a religion, for judges are not theologians and should not decide cases based on theological claims.

Rather, judges should take the theological content of the plaintiffs’ claim at face value, limiting their investigation to the factual aspects of RFRA’s criteria: the sincerity of the beliefs, and the genuinely religious (rather than merely philosophical) nature of those beliefs. In this way, judges ensure that unscrupulous individuals are not simply trying to avoid a costly or inconvenient regulation by feigning a religious objection, but refrain from entering into theological disputes. If, for instance, the Greens had never set foot in a church prior to filing their lawsuit, or if Christian theologians and religious authorities unanimously approved of abortion, judges might reasonably suspect that the HHS mandate is really burdensome only to the Greens’ pocketbook, not to the practice of their faith.

One somewhat humorous but real example of a decision under RFRA that provides a model of this way of proceeding is the case of US v. Quaintance (Tenth Circuit, 2008) in which drug traffickers claimed to be founding members of the Church of Cognizance, in which marijuana is worshipped as a deity, and possession and consumption of marijuana are essential aspects of religious practice. Despite the patent absurdity of the Church of Cognizance’s theological claims, the court correctly refrained from questioning the content of the plaintiffs’ beliefs. Indeed, the court granted that the law in question constituted a substantial burden to their stated religious beliefs. What the court questioned and ultimately denied, however, was the sincerity of those beliefs, based on abundant factual evidence that indicated the Quaintances were “running a commercial marijuana business with a religious front.”

In the HHS mandate cases brought by Frank O’Brien and the Green family, however, the judges found no reason to doubt either the plaintiffs’ sincerity or the religious nature of their beliefs. To remain within the limits of their competence, their investigation into the applicability of RFRA—and therefore of the need for the government to defend the mandate as narrowly tailored to the achievement of a compelling state interest—should have stopped there.

Unfortunately, it did not. Instead, the judges crossed the line by denying the substantive correctness of the plaintiffs’ belief that providing insurance coverage for contraceptives and/or abortifacients is morally wrong. As Judge Jackson put it, despite the plaintiffs’ sincere claims to the contrary, “the challenged regulations do not … prevent plaintiffs from acting in accordance with their religious beliefs.”

In effect, Judges Jackson and Heaton are telling the Greens and Frank O’Brien—and by extension the 108 other plaintiffs challenging the mandate as well—that they, and the religious authorities who support them, simply have their theology wrong.

These decisions set a dangerous precedent by arrogating to government officials the authority to make determinations about what a religion does, and does not, require its followers to do or refrain from doing. If we continue down this path, soon judges will be telling Jews that their religion does not require male circumcision, devout Muslims that wearing the hijab is merely optional, or Catholic doctors and nurses that their religion permits them to perform or assist in abortions. To put such power in the hands of the government is to eradicate the separation of church and state and to deal a death blow to the free exercise of religion. If we are to preserve our First Amendment rights, Judge Heaton's ruling must be overturned. More generally, as these HHS mandate cases make their way through the appeals process and eventually reach the Supreme Court, judges must scrupulously avoid deciding them based on theological claims.

Melissa Moschella earned her PhD in politics from Princeton University last spring and is a 2012-2013 Postdoctoral Research Associate of Princeton University’s James Madison Program in American Ideals and Institutions.

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