Skip to comments.Seeking Accommodation (Obama Administration vs. the Religious Freedom Restoration Act)
Posted on 01/08/2014 2:29:15 PM PST by NYer
People forget it now, but the Religious Freedom Restoration Act the law that companies and nonprofit organizations are using to fight the Obama administrations requirement that almost all employers cover contraception, sterilization, and drugs that may cause abortion in their insurance plans was controversial among conservatives in its first years. The old debate over it should remind us of two truths that, while compatible, are in tension with each other: The principle for which conservatives are fighting in todays cases is important, and it is not absolute.
The story starts in the 1980s, when two drug counselors in Oregon were fired from their jobs for the sacramental use of peyote. The state denied their applications for unemployment benefits on the ground that they had been fired for misconduct, and they sued on the theory that what the state called misconduct was actually the constitutionally protected exercise of religion. Some Warren Court decisions gave the men hope of winning.
The decision came in for substantial criticism. The liberal legal academy was mostly hostile. So was the conservative movement. The late Father Richard John Neuhaus wrote in the pages of National Review that the fear of anarchy . . . is the conventional argument against all freedoms. Other conservatives argued that the decision was right, and that we should stick with the traditional, preWarren Court practice of letting legislatures grant accommodations in particular cases, known as conduct exemptions, rather than having judges try to devise a rule and apply it across the board. (The Volstead Act implementing Prohibition, for example, exempted the religious use of alcohol, as in Catholic communion.)
The opponents won the political argument. Three years after the Courts decision, a bipartisan majority of Congress enacted, and President Clinton signed, a law to undo it a law titled to suggest, hyperbolically, that the Court had delivered a grave blow to religious freedom.
The Supreme Court did not overrule the Oregon decision: Justice Scalias ruling on the meaning of the First Amendment stood. But it accepted the new law as a statutory, rather than constitutional, protection for religious dissenters. If a generally applicable federal law such as the prohibition on peyote use in the Oregon case imposed a substantial burden on someones exercise of religion, judges would have to determine whether applying the law to that person served a compelling governmental interest using the least restrictive means possible. If the answer was no, the believer would get an exemption. Whether or not the law was right to make this inquiry the job of the courts, it seems hard to dispute that it is the right inquiry.
The current dispute arises from the Affordable Care Act, popularly known as Obamacare. It authorizes the secretary of health and human services to set a list of preventive health services that employers have to cover. The administration determined that contraceptives should be on that list. (Which appears to make pregnancy akin to a disease, but lets skip over that.) Some employers object to those forms of contraception that may in some cases cause abortion. Some follow Catholic teaching in objecting to contraception in general, and even more to abortifacients. Both groups further believe that it would be sinful to facilitate the behavior they deem immoral, or to create the impression that their opposition to it is weak or nonexistent.
Some opponents of the administrations rule have said that the First Amendment requires that religious objectors receive an exemption. If Justice Scalias Oregon decision was right, though, thats a hard case to make. The liberal Washington Post columnist Harold Meyerson has raised the possibility that Scalia might vote in favor of the religious dissenters anyway, because hes being confronted with a case where the religious beliefs in question may be closer to his own than the beliefs of the Oregonians. More likely, though, is that Scalia will decide the case under the Religious Freedom Restoration Act, which of course did not exist at the time of the Oregon decision, rather than under the First Amendment. (Meyerson shows no evidence in the column that he knows this law exists.)
Applying that law requires, first, determining whether it covers corporate persons: Can people organized in the corporate form be said to face a substantial burden to their religious consciences? The Dictionary Act stipulates that laws that refer to persons should be understood to include corporations unless otherwise specified, and the Religious Freedom Restoration Act contains no such exclusion. Reading the act to exclude corporations would have perverse results, as conservative legal writer Ed Whelan notes: It would mean that a kosher deli, if it were incorporated, would have no claim against a law that forced it to serve pork.
The rest of the analysis should be pretty straightforward. The administrations rule requires the objectors to do something they believe their religiously informed consciences forbid, or else pay a steep fine for each employee they do not cover. Thats a substantial burden. The only way to conclude otherwise is to reject the employers religious views, which are not on trial before the courts.
It cannot be seriously maintained that forcing employers who object to contraception to provide it is the least restrictive means of advancing a compelling governmental interest. The government could, for example, increase its direct subsidies for the distribution of contraception, involving objectors only to the extent that they pay taxes to the general federal pot. Or the government could allow oral contraception to be purchased over the counter, without a prescription, involving objectors not at all.
Supporters of the administrations legal position in the press have largely avoided engaging these points (except for corporate personhood, which they gleefully attack without noticing that in many cases it is what allows the law to hold corporations accountable for misconduct). Instead, they have created rhetorical diversions.
The editors of the New York Times say that the dissenting businesses have asserted an unprecedented right to impose their views on workers who do not share them. That framing of the issue may be effective, as undecided voters often instinctively side against whoever seems to be the aggressor in a culture-war debate.
But of course the employers are not going to court to stop employees from using contraception (or even resorting to abortion) should they wish to do so; they are merely trying to keep themselves from any complicity in it. A right not to be coerced into such complicity had never previously been asserted in court only because it had been taken for granted through the first two centuries of our countrys existence.
Feminist writers have tried a variant of the same claim, saying that the dissenting employers are placing their right to act on their religious beliefs above the rights of their female employees. To the extent these feminists are making a legal claim, it is vacuous: Yes, the employers are asserting that their right to act on their beliefs, protected by statute, trumps the right to employer-provided contraceptive coverage created by the regulation. So much is obvious.
If its a moral claim, its false. Lets assume that the employers believe that governments should respect a right to contraception of the sort the Supreme Court has protected: a right to produce, purchase, and use contraception free of governmental interference. That right does not conflict with their own right not to provide such coverage. It conflicts only with a right to employer-provided contraceptive coverage. The employer litigants do not believe that this right of employees should be set aside because of their religious scruples; they dont believe this right exists in the first place.
Defenders of the law who avoid such flimsy arguments usually end up making some sort of slippery-slope case: Let employers with religious objections opt out of the contraceptive mandate, for example, and pretty soon youll be letting other employers opt out of covering blood transfusions, or medical coverage altogether. Or letting Quakers get out of paying taxes to support the military. If religions that believe in human sacrifice make a comeback, should they get an exemption from murder laws?
The more outlandish scenarios ignore the terms of the Religious Freedom Restoration Act and thus state the principle behind the lawsuits too broadly. The principle isnt Never impose a burden on the practice of faith. Its Dont impose a substantial burden on the practice of faith unless you have to, that is, unless its the least restrictive way to advance a compelling governmental interest. No neo-Aztecs can take shelter against the murder laws under that principle.
Maybe the anti-medicine employers could but would anyone step forward to make the case? For almost all of American history, employers were perfectly free to deny all kinds of coverage for religious or any other reasons, and yet religious conflict over health care in the workplace has been nearly absent from American life. Nobody cites actual cases in which employees were denied coverage for transfusions because their bosses were Jehovahs Witnesses.
So long as the principle behind the lawsuits is defined precisely, the arguments against it and them are very weak. Whether that will be enough for Justice Kennedy is anybodys guess.
It is illegal for Obama to interfere with religions. Flat out illegal! Do none of our politicians have any brains left?
For what reason did Obama agree to give ObamaCare exemptions to a large number of groups, including labor unions and Muslims, but adamantly refuse to do so for groups like the Little Sisters of the Poor?
There was no reason involved. The decisions were based solely on Obama’s personal preferences.
The overwhelming legal problem for America today is that the law means nothing to our president, he acts exactly like a dictator, and no one in the other branches of government seems to care or is willing to do anything to stop him.
Now the Supreme Court will have a chance. There is a freedom of religion amendment, and there is also an equal protection clause in the Constitution. Surely, it can’t be constitutional for some groups to receive ObamaCare exemptions while others can’t.
The entire ObamaCare law is a flagrant violation of the principles of the Constitution, the worst nightmare that our freedom-loving Founding Fathers could have imagined. Who will end the dictatorship we’re living under?