After Hobby Lobby, the Struggle for Religious Freedom Continues

Yesterday at Public Discourse, Ryan Anderson cogently reviewed the reasoning and impact of Monday’s Supreme Court decision in Burwell v. Hobby Lobby. The Court ruled that the Religious Freedom Restoration Act (RFRA) protects closely held, private for-profit corporations from being forced to comply with the HHS mandate under Obamacare—which would require them to provide insurance coverage of abortifacient drugs and devices—if the owners’ religious conscience forbids their complicity in abortion.

The ruling was narrowly focused, in keeping with the best jurisprudential norms of deciding only the case in front of the judges. Yet it was also suggestive of principles that should guide future decisions on related cases. Today, I’d like to walk through some of the issues that await us in law and in politics.

Whither the Law for Profit-Making Companies?

The bottom line of Monday’s ruling was that the Department of Health and Human Services, in imposing the insurance coverage requirement on all for-profit employers (except the smallest or those with “grandfathered” plans), regardless of their religiously grounded exemptions, failed to employ the least restrictive means to attain its objective of providing women with “access” to abortifacient drugs and devices at the expense of others.

All that the Court can really do is tell the government that what it has done so far is illegal. The justices cannot rewrite the published HHS regulation to conform to RFRA. But in its impact on similar companies—private, closely held for-profit companies with religious objections to the coverage mandate under RFRA—the regulation is now effectively a dead letter. According to the Becket Fund, there are currently 193 for-profit companies involved in forty-nine lawsuits similar to the case just decided. Additional employers may step forward to claim the same right of relief just won by Hobby Lobby and Conestoga Wood. What will the administration do now?

As the Court said, the government has less restrictive options that it could pursue. One option is to pay for the drugs and devices itself out of the public treasury. But this would, at the very least, require new regulation-writing; it may also require the passage of laws to authorize and appropriate funds for new government programs. With a divided Congress, this would not be easy for the administration. Nor should it be, given the concerns many members of Congress rightly have about spending taxpayers’ money on drugs and devices that can cause abortions.

The other option highlighted by the Court’s ruling is to offer these companies the same “accommodation” the administration has crafted for “eligible organizations”: non-profit religious organizations that state a religious objection to the mandate. Such entities are supposedly relieved of all the burdens of paying for or even arranging for their employees’ contraceptive coverage; these burdens are said to be shifted entirely to their insurers or (in the case of self-insuring employers) the “third-party administrators” (TPAs) that handle employee claims. The fact that such an “accommodation” exists for one set of employers, Justice Alito observed, shows that the administration knows how to craft a less intrusive policy regulation if it wants to. The same offer could be made to for-profit employers who state a religious objection to the coverage mandate.

The Future of the “Accommodation” Offered to Some Employers

But the Court’s rehearsal of this policy option does not settle the question of whether it survives scrutiny under RFRA. Justice Alito takes great care to set aside two questions the Court did not decide in its ruling on Monday.

First, he bypassed the question of whether “guaranteeing cost-free access” to contraceptives, abortifacients, and sterilization services is even a “compelling interest” for the government to pursue. In a future case, the Court may well reject that proposition. Even Justice Kennedy’s separate concurrence in Hobby Lobby, which reiterated the Court’s “assumption” of a compelling interest for the sake of argument, should not be taken as predicting how he will vote if this question is squarely presented and vigorously argued.

Secondly, Justice Alito was careful to say “we do not decide today whether an approach of this type”—i.e., an effort to sever or at least attenuate the link between employment and the objectionable coverage—“complies with RFRA for purposes of all religious claims.” As Ryan Anderson pointed out yesterday, already the Court has lifted the HHS mandate’s burden from the backs of the Little Sisters of the Poor while litigation over this “accommodation” continues, and late Monday it prohibited the government from enforcing its regulation against Wheaton College. Taking its cue from the Hobby Lobby ruling, the Eleventh Circuit on Monday restrained the government’s attempt to force EWTN to comply with the regulation as well.

Clearly, the administration’s “accommodation” is in trouble too. Here’s why. Even if a “compelling interest” is once again assumed for the sake of argument, the administration has shown that it knows how to treat religious objections by a still less “restrictive” standard that takes religious conscience more seriously. It has completely exempted churches themselves, with no folderol about who pays for the coverage, who arranges it, whether the employer has to send some form to an insurer or to the government to “trigger” the coverage, and so on. As Justice Alito quoted from the relevant regulation, “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order,” are entirely outside the ambit of the HHS mandate. If the government is concerned about the access of their employees to the contraceptive-abortifacient-sterilization coverage, it has shown no sign of that concern. Why is it a calamity if the number of persons without the coverage grows with the addition of those who work for EWTN, Wheaton College, the Little Sisters, and others in the religious non-profit sector?

There is another reason why such employers should win an outright exemption, ably explained by Judge William Pryor of the Eleventh Circuit in the EWTN case: “The United States does not dispute the Network’s belief that its Catholic faith prohibits it from signing, submitting, or facilitating the transfer of the form” the government uses to trigger the provision of the coverage from an insurer or TPA. Indeed, as Judge Pryor notes—relying in part on the Hobby Lobby ruling—the government cannot dispute it, since it is a question of religious tenets that the government is incompetent to dispute and that courts cannot adjudicate beyond the sincerity of the persons holding them.

Hence, in cases like EWTN’s and Notre Dame’s, even the “accommodation” represents a direct assault by the government on religious conscience. The burden on religious freedom is substantial, the “compelling” character of the government’s interest is highly questionable, and the one easy means available to the government, if it wishes to achieve its objective without serious damage to the right of employers to practice their faith in the workplace, is to pay for the coverage with public funds. If that option is politically difficult for the government, the courts and the rule of law can hardly be blamed for that fact.

A Row of Dominoes

But think this through for a moment. On Monday, the Court rightly held that the owners of private, closely held corporations are protected under RFRA even if they run a profit-making business. Yet if total exemption from the HHS mandate is a viable option for houses of worship and other entities whose activities are “exclusively religious”; if the halfway house of the “accommodation” is still an intolerable imposition on “para-church” organizations such as charities, non-profit broadcasters, and religiously affiliated educational institutions; and if therefore a complete freedom from the mandate should be available to them too, then why should an employer like Hobby Lobby or Conestoga Wood be subject to the halfway-house treatment that those now subject to it find conscientiously intolerable?

The structure of the Court’s logic compels the conclusion that, for purposes of religious freedom, all the objecting employers are identically situated. Churches, houses of worship, and religious orders (now exempted), para-church institutions such as Notre Dame and EWTN (now “accommodated” but still, in their own view, morally complicit in evil), and private for-profit employers (coerced until two days ago and now in limbo for a time) can all equally claim religious freedom from the unjust coercion of the government. As artificial persons in the law—organized to serve and secure the interests of the natural persons they represent—they are in principle indistinguishable in their ability to claim the same sincere religious objection to the HHS mandate.

The government’s effort to distinguish these categories of employers amounts, in short, to a row of dominoes, all falling together by the logic of religious freedom enunciated by the Court in Hobby Lobby. Exempt some of them—the most obviously “religious”—and one must exempt them all, if their claims are in fact sincere. Either that, or it really is the law of the land that the faith Americans practice one day a week in their houses of worship is unprotected the other six days a week in the non-profits and businesses they own and operate. But that can’t be right. The Supreme Court just repudiated that proposition in the plainest and most compelling terms.

The Law and Politics Ahead

Suppose I am right about the logic of religious freedom that should topple the dominoes of the Obama administration’s mandate. Still, there is no guaranteeing that the Supreme Court will obey the authority of that logic. Much more persuasive advocacy must be undertaken by the tireless litigators of the Becket Fund, the Alliance Defending Freedom, and other organizations that defend religious liberty.

Meanwhile, on the left there will be efforts to undo this victory for religious freedom. Justice Alito’s opinion for the Court was right to note that “the most fundamental objection” of Justice Ginsburg’s dissent in the case was “to RFRA itself.” That statute is bound to come under attack. Already, many liberals would like us to forget that it passed both houses of Congress almost unanimously twenty-one years ago and was signed by President Bill Clinton.

RFRA can be attacked in two ways. Proposals to amend it will surely be introduced, either to exclude some or all corporations from its protections or to change the standards the courts apply when the law is invoked. Or, in future legislation on other subjects, bills that can be expected to prompt RFRA challenges will be written to exempt them from its strictures. Such legislative efforts must be turned aside by the friends of freedom in Congress, who are supported by an interfaith coalition to keep RFRA intact and effective.

Of course, on the campaign trail and in the media, the usual claims about a “war on women” will be heard again. We hear them already. Intelligent defenders of religious freedom must vigorously rebut such ridiculous claims. But hard work lies ahead of us everywhere: in courts and in legislatures, in the executive branch and in electoral politics, in public persuasion and in individual resolve. The Supreme Court gave freedom a signal victory on Monday, but it was one battle in a long campaign.