The US Supreme Court’s long-awaited decision in Burwell v. Hobby Lobby left much to sort out in the aftermath. So it was no surprise last week when Matthew J. Franck wrote here at Public Discourse that the logic of the Hobby Lobby decision requires a total exemption for religious non-profits, in lieu of their currently provided “accommodation.” Hobby Lobby’s lead counsel, Professor Mark Rienzi, even indicated as much.
The Religious Freedom Restoration Act (RFRA) requires the least restrictive means of furthering a compelling government interest. In Hobby Lobby, the Court assumed there was a compelling interest and ruled that the mere existence of a less restrictive “accommodation” in the non-profit context undermined the government’s direct mandate in the for-profit context. In like manner, the argument goes, the government’s total exemption for churches is evidence of an even less restrictive means than an “accommodation.” Therefore, the logic of Hobby Lobby requires a total exemption for all religious claimants with a valid claim against the mandate. After all, the argument concludes, even Justice Kennedy stated in his concurrence that “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.”
But this argument misreads both the law and Justice Kennedy’s analysis. The government’s total exemption for churches is not a least restrictive means in furtherance of a compelling interest, but rather an acknowledgment that it has no compelling interest in carrying out the mandate within the four walls of a church, where it predicts that employees are more likely to agree with the religious beliefs of their employers.
This essay illustrates a better path to total exemption for currently non-exempt organizations and businesses. I argue that the government’s interests are the same with respect to churches and organizations or businesses with religious objections. Treating them differently is, in Pope Francis’s words, “a new form of discrimination” against religious believers who “go into all the world” and live their faith.
Similar Government Interests (or Lack Thereof)
In order to show that non-church organizations and businesses deserve the same exemption as churches, it’s necessary to demonstrate that they are all similarly situated with respect to the government’s interests in promulgating the mandate. In other words, if the government’s interests are the same for each, then equal treatment must apply. Therefore, an argument for total exemption must show that the government lacks a compelling interest in coercing compliance by non-church organizations and businesses, just as it lacks a compelling interest in forcing obedience from churches.
There are several ways to proceed. Assuming the mandate constitutes a substantial burden on objecting organizations’ religious exercise, RFRA requires the government to demonstrate that the application of the HHS mandate “to the person” (not to the public generally) is the least restrictive means in furtherance of a compelling government interest (Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal). Here, the government claims a compelling interest in furthering two principal goals: public health and women’s equality (Hobby Lobby).
But as decisions in the Seventh, Tenth, and DC Circuit Courts of Appeals have already explained, the government’s built-in exemptions for grandfathered plans and businesses with fewer than fifty employees critically undermines the government’s alleged interests. As the Tenth Circuit put it, “the interest here cannot be compelling because the contraceptive coverage requirement presently does not apply to tens of millions of people.” After all, “it is established” in the Supreme Court’s “strict scrutiny jurisprudence that ‘a law cannot be regarded as protecting an interest "of the highest order” when it leaves appreciable damage to that supposed vital interest unprohibited.’”
Furthermore, the mandate’s questionable premise that free contraception and abortifacients promote women’s health is a fatal flaw in the government’s compelling interest claim. As Professor Helen Alvaré has cogently demonstrated in both scholarship and amicus briefing, the Institute of Medicine report underlying the mandate fails to connect the causal dots between increased access to contraceptives and increased use of contraceptives, and from increased use to a decrease in unintended pregnancies and a corresponding increase in women’s health.
As Alvaré explains, cost is, at most, only a small factor in women’s decisions whether to use contraception. The IOM report cites a Centers for Disease Control study illustrating that among its most “frequently cited reasons” for the non-use of contraception by women who experienced unintended pregnancies, it “did not list financial reasons at all.” Additionally, while the HHS Mandate’s primary “beneficiaries” are employed women and their daughters, a study cited in the IOM report shows that the rate of unintended pregnancy is three times higher among women below the poverty line than for women with incomes higher than 200 percent of poverty. Yet the IOM report acknowledges the wide availability of contraception to low-income women via health centers, family planning centers, and federally mandated family planning Medicaid programs (with no cost-sharing allowed).
To the extent that greater contraception access impacts overall usage, Alvaré notes that a “significant body of literature” shows that increased contraception accessibility “with respect to teens who were not sexually active . . . is associated with an increase in teen sexual behaviors leading to more teen pregnancies and abortions overall.”
A key study by Duke University Professor Peter Arcidiacono showed that increased access to contraception encourages sexual activity and increases overall teen pregnancy in the long run. (Note that the claim in the IOM report that increased contraception “use” (emphasis added) decreases overall unintended pregnancy is based on a relatively recent and short-term study demonstrating an association between adolescent contraception use and reduced unintended pregnancy rates.)
None of this is to mention, of course, that certain contraceptives and abortifacients are “known” carcinogens and agents of an “increase(d) . . . risk of stroke and blood clots in the legs and lungs.” Combined, the negative health effects of certain contraception and the highly tenuous claims of the IOM report fail to satisfy anything nearing a compelling interest test, which requires showing that the mandate is “actually necessary” in solving an “actual problem” (Brown v. Entertainment Merchants Association) and that the evidence for an alleged health risk is more than merely “in equipoise” (O Centro).
The lack of a compelling interest, once established, thus puts non-church organizations in the same category as churches. The government, and RFRA, supply the remedy in that case: total exemption.
The Exemption is Not Sufficiently Inclusive
While churches and other objecting organizations are similarly situated as to the government’s interests, they are also similarly situated with respect to the scope of the church exemption itself—as revised by the Obama Administration in 2013. Therefore, the church exemption is substantially underinclusive and should be extended to otherwise non-exempt organizations and businesses with religious objections.
The initial structure of the HHS mandate gave the Health Resources and Services Administration (HRSA) authority to grant a total exemption to “religious employers,” defined as those organizations that: (1) had the inculcation of religious values as their primary purpose; (2) primarily employ people who share their religious principles; (3) primarily serve people who share their religious principles; and (4) are organized as non-profits under the sections of IRS code referring to “churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.” The exemption did “not undermine” the HHS mandate, according to the Obama Administration, because “employees of employers availing themselves of the exemption would be less likely to use contraceptives even if contraceptives were covered under their health plans.”
But in 2013, the Obama Administration amended the exemption. It eliminated the first three prongs of the “religious employer” test and simplified the fourth. According to the Administration, the changes
were intended to eliminate any question as to whether group health plans of houses of worship that provide educational, charitable, or social services to their communities qualify for the exemption. Specifically, they were intended to ensure that an otherwise exempt plan is not disqualified because the employer’s purposes extended beyond the inculcation of religious values or because the employer hires or serves people of different religious faiths. (Emphasis added.)
True, the government still believed that exempt churches “are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” Nevertheless, these changes undermine the distinction between “religious employers” and non-church organizations and businesses with respect to whom they employ and whom they serve. And they directly contradict Justice Ginsburg’s characterization of “religious organizations” in her Hobby Lobby dissent, which, she said, constitute communities “made up of believers in the same religion” and “exist to foster the interests of persons subscribing to the same religious faith.”
Under the latest terms of the mandate, even churches that hire people of other faiths or that serve the poor and the needy without religious discrimination—that is, churches that practice their faith outside of their worship halls—still qualify for a total exemption, whereas similarly situated non-church claimants do not.
The Absurd Effects of Arbitrary Distinctions
The actual effects of this kind of thinking quickly become absurd. In the case of Wheaton College v. Burwell, a faithful Christian college hires only co-religionists, requires each student and employee to agree to its “covenant” of faith, and requires that each employee annually reaffirm his or her agreement with its “statement of faith.” Yet the Obama Administration (and the three justices who dissented from the high court’s injunction favoring Wheaton last week) still insists on forcing Wheaton to participate in its scheme of facilitating free abortifacients to employees and students.
So, while churches that hire and serve people of other faiths may receive a complete exemption under the law, objecting religious organizations that hire and serve only those who share their religion are not eligible for the same exemption—despite the government’s stated lack of interest where employees agree with their employers’ religious beliefs.
Even the narrowest view of religious liberty should not tolerate such capricious results. If the government acknowledges no interest of any kind as to churches (even churches that hire non-co-religionists), it necessarily lacks any interest—let alone a compelling one—with respect to Wheaton and other arbitrarily unprotected claimants.
Federal employment law confirms this parity. Title VII of the Civil Rights Act of 1964 exempts “religious corporation(s), association(s), educational institution(s), or societ[ies]” from the federal prohibition on religious discrimination in employment, without distinguishing churches from other religious organizations. It also provides special religious protections for schools, and it allows any covered employer to make hiring and firing decisions on the basis of religion, to the extent that religion “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” Think, for example, of a covered for-profit Christian bookstore or a religiously themed photography studio.
Indeed, there is good reason to think the government is not competent to differentiate among types of religious claimants for purposes of religious exemptions. Its traditional reluctance to engage in religious line drawing should bear on the question of whether the government has crafted a valid one in the HHS mandate. Because churches and non-church organizations are similarly situated with respect to the scope of the mandate’s exemption, including the reasons for its alteration in 2013, the government cannot succeed in showing why it has zero interest in one context but a compelling interest in the other.
A New Form of Discrimination
Justice Kennedy’s concurrence in Hobby Lobby added nothing of substance to the RFRA strict scrutiny analysis going forward. But he struck the right note in his introductory comments, noting that the free exercise of religion guarantees the right to “express” one’s religious beliefs “and to establish one’s religious . . . self-definition in the political, civic, and economic life of our larger community.” It is this right of religious self-definition that the government’s myopic religious line-drawing impermissibly undermines in the HHS Mandate.
Pope Francis condemned this secular tendency in his Apostolic Exhortation, Evangelii Gaudium. His poignant criticism is directly on point in our current struggle:
A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism. The respect due to the agnostic or non-believing minority should not be arbitrarily imposed in a way that silences the convictions of the believing majority or ignores the wealth of religious traditions.
The Court’s decision in Hobby Lobby did much good for religious freedom. But the journey to full exemption remains incomplete. It is up to future litigants to show that the mandate’s arbitrary application cannot stand—whether by the standards of strict scrutiny, the principles of its own terms, or the norms against religious discrimination by an authoritarian state.
Michael McHale is a Blackstone Legal Fellow with Alliance Defending Freedom. He is a graduate of the Nebraska College of Law and currently works in the Nebraska State Legislature.