Since the Supreme Court’s decision in June to uphold Obamacare, the legal battle over the law has shifted to the religious liberty lawsuits filed by the University of Notre Dame and several other institutions and individuals. Those litigants scored an early victory in July, when a federal district judge issued a preliminary injunction, preventing the federal government from applying the HHS mandate against Hercules Industries, a private for-profit company.
But even if these lawsuits are successful, those concerned about religious freedom should be careful about defending it primarily through litigation. It is unlikely that the lawsuits filed will sufficiently protect religious freedom and, in some ways, they may actually endanger it.
The lawsuits by Notre Dame and more than forty other plaintiffs, including several prominent Catholic dioceses, advance the same core arguments: that the HHS contraception mandate violates the First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act, a 1993 federal statute.
There can be no doubt that the HHS contraception mandate will coerce Catholic and other individuals to violate their consciences. It requires employers with more than fifty employees to include coverage for contraception, abortifacients, and sterilization procedures in their group health plans. After religious groups expressed their opposition earlier this year, President Obama floated a “solution” that would require insurance companies to pay for these services when an employer objected to doing so.
But the insufficiency of that ill-thought-out proposal was quickly recognized. Employers such as Notre Dame self-insure, so no third-party insurance company exists to absorb the objectionable costs. In those situations where costs could be passed on, insurance companies would most likely recoup their added expenditures by raising premiums. One way or another, Obamacare’s contraception mandate forces employers to pay for and provide reproductive services that are contrary to many religious believers’ moral convictions.
The religious liberty lawsuits ask for exemptions from the HHS mandate for those religious believers who find compliance conscientiously impossible. Exemptions would seem to be reasonable, and politically feasible, and they are probably legally required. Protecting religious liberty through court-granted exemptions, however, entails three “costs,” outlays that are frequently overlooked. Whether these expenditures are worth it and what alternative strategies ought to be adopted are, in part, prudential questions that can only be answered intelligently if a full and forthright evaluation of the exemption approach to religious liberty is undertaken.
In today’s essay I consider the first two costs; namely the implausibility of getting religious exemptions for all conscientious objectors to the mandate, and the overreach of judicial authority involved in religious liberty cases. In tomorrow’s essay, I will discuss how religious liberty litigation can undermine long-term arguments for upholding our first freedom, and explore what can be done to prevent the downside of litigation.
Cost #1: Exemptions Likely Will Not Be Extended to All
The most problematic aspect of the exemption approach is that litigation strategies tend to benefit large, institutional religious organizations, while failing to cover relatively powerless religious individuals. To state the matter starkly, the process by which Notre Dame and the Catholic bishops secure religious exemptions for themselves may leave behind many, if not most, religious business owners.
Religious liberty litigation does not produce on-demand exemptions for all. If the University of Notre Dame wins its lawsuit, the only party guaranteed an exemption is the University of Notre Dame. A judge probably would extend exemptions to all other similarly situated institutions, but that might include only other easily identifiable religious institutions, such as Catholic archdioceses, and religiously affiliated universities, hospitals, and social service agencies. For-profit businesses that are owned or directed by religious individuals are not obviously similarly situated.
This is why the lawsuits brought by business owners are so important, as they have the best chance to cover the most individuals, including individual religious business owners. The preliminary injunction won by Hercules Industries, an HVAC company owned and directed by a Catholic family, is a hopeful sign. But Hercules Industries is not the average business. The company’s articles of incorporation stipulate that its primary purposes are to be achieved by “following appropriate religious, ethical or moral standards” and that the board of directors must prioritize those “religious, ethical or moral standards” at the expense of profitability.
The company also has an extensive record of donating large sums of money to Catholic charities. Hercules Industries is a special kind of business; its owners admirably live their faith through their business. Those laudable attributes, however, make it less likely that a victory by Hercules Industries will extend to other for-profit companies owned by objectors to the HHS mandate.
In short, the litigation under way might provide relief for some who conscientiously object to the HHS contraception mandate, but it is unlikely to bring relief to all who deserve it. The probable best-case scenario is legal victories by Notre Dame, Hercules Industries, and others that provide precedents for subsequent exemption litigation, which in turn leads to court-granted exemptions in a case-by-case, group-by-group manner. This costly and lengthy process could extend exemptions to a broad variety of individuals and institutions. Nonetheless, for some companies, perhaps many, this may not be enough. Those companies that lack the resources to file an exemption action and cannot so easily demonstrate their religious character probably will be forced to comply with a law that compromises their moral integrity.
Cost #2: Exemptions Lead to Improper Governmental Decision-Making About Religion
“Half a loaf is better than no bread,” Thomas Jefferson said of the desirability of adding a bill of rights to the proposed Constitution. The same could be said of gaining exemptions for only some who oppose the HHS mandate. A bit of subjugation is better than a lot of subjugation. Unfortunately, the legal process by which exemptions are procured itself offends a proper understanding of religious liberty. Companies and institutions that gain exemptions do so by submitting to judicial inquiries that improperly extend government’s jurisdiction over religion.
Those who litigate for exemptions must demonstrate to a judge that their beliefs and practices are sufficiently religious to qualify for an exemption. Government officials, including judges, lack legitimate authority to make such judgments. If religious liberty means anything, it is supposed to mean that government officials are not to determine what counts as “truly religious,” “sufficiently religious,” or “acceptable religious practices.”
A few examples might help illustrate the point. Everybody can agree that Notre Dame is a religious university, and a judge might also agree that Hercules Industries has demonstrated sufficient religious commitments to be deemed a religious business for the purposes of the law. But what about a Catholic-owned business that does not mention religion in its articles of incorporation? Or, what if that business cannot afford to donate generously to religious charities? Does simply having an owner who is Catholic make a for-profit business religious and, therefore, exemption-eligible? If so, how does the business owner prove his Catholicism to the court? Does he have to produce his baptismal certificate or have his parish priest sign a statement affirming that he takes communion regularly and goes to frequent confession? Would the business lose its exemption if the owner loses his faith? If so, does the government have a right to regularly check up on the frequency of the business owner’s mass attendance?
Consider Domino’s Pizza when it was owned by Tom Monaghan. It is well-known that Monaghan is a traditional Catholic who subscribes to the Catholic Church’s teachings about the immorality of birth control. Monaghan sold Domino’s to Bain Capital when Bain was run by Mitt Romney. If Domino’s qualifies for an exemption when owned by Monaghan, does it qualify for an exemption if owned by a Mormon-led venture capital firm? Would a judge have to inquire into Mormon teaching about contraception to find an answer?
Let’s say a business owner who is a long-time member of the United Church of Christ applies for an exemption. A judge, understandably, might be perplexed. The owner claims to have a religious objection against the HHS mandate, but a well-informed judge also would know that officials of the United Church of Christ have spoken out in favor of the HHS mandate. Should the judge deny the petitioner an exemption because he misunderstands his own religion’s teaching, or extend an exemption even though the petitioner’s own church says one is not necessary? Or what if the individual petitioning for an exemption claims to hold a religious objection against the mandate but does not belong to a church, attend religious services, or even claim to know whether God exists? Does such an individual qualify for a religious exemption?
Variations of these questions could be multiplied over and over. At the most fundamental level, religious liberty means officials of the state are prohibited from judging what constitutes authentic religious exercise or even inquiring into citizens’ religious status. These prohibitions are grounded on a bedrock principle of liberal democracy—that those who hold political power lack the competence, and therefore the authority, to judge religious truth. Litigation for exemptions necessarily invites judges to trespass this foundational principle and extend their judgment and jurisdiction over religious matters.
Perhaps because such inquiries sometimes lead to desirable results, religious individuals have become less attuned to this dangerous overreach of governmental authority. It is all the more dangerous, though, because it has become routine. In the name of protecting religious freedom, the courts have set up a legal process that violates it.
It is true that this problem could be avoided if judges simply accepted, without question, the religious claims of those seeking exemptions. If all employers who self-identify as religious were so considered and the burdens they allege were accepted without question as infringements of religious liberty, judges would avoid the need to set parameters for what constitutes an exemption-eligible exercise of religion. No doubt every litigant who has filed suit would accept this outcome, because, absent the government’s demonstration of a compelling state interest pursued in the least restrictive manner possible, every individual and institution that applied for an exemption would get one.
For good reasons, however, jurisprudence under the First Amendment’s Free Exercise Clause and the 1993 Religious Freedom Restoration Act has never proceeded in this way. Doing so would open the floodgate to spurious claims for exemptions. Moreover, the approach would be based on the impossible logic that if any religious individual is burdened by a particular regulation, all self-identified religious individuals have an unquestioned right to be exempt from it. No well-functioning legal system can allow the subjects of the law that much discretion over legal authority. If applied consistently and constantly, such a construction would allow religious individuals to nullify all legislation they found objectionable.
The need to preserve the rule of law prevents exemptions from being granted on demand to all those who seek them. Judges, accordingly, have developed doctrines to restrict the availability of exemptions only to those who, in their findings, suffer a “substantial burden” to their religious exercise. Judges, not litigants, ultimately decide what constitutes a “substantial burden” on religion. This necessarily means that state officials determine what constitutes authentic religious practice and, in doing so, violate the core meaning of religious liberty.