Analysis Contraception

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

Imani Gandy

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?

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.

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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 Rewire’Jessica Mason Pieklo and Jodi Jacobson.) Questions about whether the mere participation in an insurance plan 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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