The New York Times
JULY 23, 2015
The court of Chief Justice John G. Roberts Jr. has been one of the most religion-friendly Supreme Courts in modern history. Nearly every religious claim presented to the court has emerged a winner, from explicitly sectarian prayer at town board meetings, in last year’s closely divided Town of Greece decision, to beards for Muslim inmates in a prison system that banned facial hair — a unanimous decision that defied the court’s tradition of deference to prison officials and their rules.
Most famous, of course, was last year’s Hobby Lobby decision, exempting a for-profit company from having to cover contraception in its employee health plan, as otherwise required under the Affordable Care Act, because of the owners’ religious scruples about birth control.
At issue are the options the Obama administration has made available to a category of employers deemed “religious nonprofit organizations” that object to including birth control in their employee health plans. These groups differ from “religious employers,” a category essentially limited to churches, which are deemed exempt under the Affordable Care Act regulations. Rather, these are religiously affiliated nonprofits such as colleges, seminaries and religious orders like the Little Sisters of the Poor, which runs nursing homes and describes itself as an equal-opportunity employer in its hiring practices for lay staff members. These nonprofits do have to provide contraception coverage unless they accept the administration’s offer to opt out of the requirement by passing the legal obligation on to their insurance carriers.Now the post-Hobby Lobby cases have, inevitably, arrived at the Supreme Court’s door. Three appeals have been filed so far, and the justices will decide shortly after the new term begins in October whether to accept any of them. At that point, the spotlight will return to the court, along with the heated rhetoric about the Obama administration’s supposed “war on religion.” Not only is there no such “war,” but the administration has bent over backward to accommodate religious claims that are by any measure extreme. The problem is that the religious groups pressing these claims refuse to take yes for an answer. The question is whether their arguments go too far, even for the Roberts court.
Under pre-existing regulations that the Obama administration fine-tuned in the aftermath of the Hobby Lobby decision, all these organizations have to do to qualify for the exemption is to ask for it, by filling out a two-page form, or even more simply by sending a letter to the Department of Health and Human Services declaring that they have a religious objection to paying for birth control. At that point, their obligation ceases and the coverage has to be provided by the organizations’ insurance carrier or, in the case of a self-insured plan, by the third-party administrator, without any financial involvement by the organization.
Dozens of these organizations promptly filed suit claiming that they couldn’t possibly fill out the form or sign the letter because to do so would make them complicit in the ultimate choice their employees might make to use birth control.
It’s important to understand the difference between these cases and the lawsuit by Hobby Lobby’s owners. As a for-profit company, Hobby Lobby had no accommodation available. It had either to provide the coverage or pay a huge fine. In fact, the court’s majority opinion, written by Justice Samuel A. Alito Jr., strongly suggested that the problem, as the majority saw, it could be solved if only the administration would offer Hobby Lobby the same choice it was giving the religious nonprofits. Justice Alito wrote that the Department of Health and Human Services “itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.” In a footnote, he added: “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases.” Justice Anthony M. Kennedy, who provided the fifth vote to the majority, wrote in a concurring opinion that the accommodation as described “does not impinge on the plaintiffs’ religious beliefs.”
The Hobby Lobby case had not been argued on this basis, and Justice Alito noted that the court was not deciding whether such an accommodation would suffice “for purposes of all religious claims.” To that extent, the statements were nonbinding “dicta,” not part of the holding. But they have had a powerful influence in the lower courts. Cases challenging the adequacy of the accommodation as applied to religious nonprofits have now made their way through six of the 12 federal appellate circuits. Remarkably, every court has rejected the religious claims.
Not all the decisions have been unanimous; there have been dissenting opinions by individual judges, a fact that may lead the Supreme Court to accept one or more of the pending appeals despite the absence of the “conflict in the circuits” that the court usually waits for. But, notably, judges across the ideological spectrum have ruled for the government. One of the country’s most conservative federal judges, Jerry E. Smith, wrote the opinion last month for a unanimous panel of one of the country’s most conservative courts, the United States Court of Appeals for the Fifth Circuit.
The Supreme Court’s Hobby Lobby decision “is of no help to the plaintiffs’ position,” Judge Smith wrote in East Texas Baptist University v. Burwell.The reason, he explained, was “not just that there are more links in the causal chain here than in Hobby Lobby.” Rather, it was that “what the regulations require of the plaintiffs here has nothing to do with providing contraceptives.”
It’s worth quoting Judge Smith at some length, including his reference to the Religious Freedom Restoration Act, the federal law under which the Hobby Lobby case and the current cases were brought:
“The plaintiffs urge that the accommodation uses their plans as vehicles for payments for contraceptives. But that is just what the regulations prohibit. Once the plaintiffs apply for the accommodation, the insurers may not include contraceptive coverage in the plans. The insurers and third-party administrators may not impose any direct or indirect costs for contraceptives on the plaintiffs; they may not send materials about contraceptives together with plan materials; in fact, they must send plan participants a notice explaining that the plaintiffs do not administer or fund contraceptives. The payments for contraceptives are completely independent of the plans. . . The acts that violate their faith are the acts of the government, insurers, and third-party administrators, but R.F.R.A. does not entitle them to block third parties from engaging in conduct with which they disagree.”
And of course, the choices and the rights of third parties, in this instance, the female employees, are the whole point. It is not only that female employees, and not their bosses, make the choice to use birth control. It is that the employers’ religious objections, if honored, would cause these third parties actual harm — harm that would be avoided if the employers simply signed the form or sent the letter. The extreme to which the plaintiffs’ refusal takes their “complicity” argument is what the appeals courts have found so alarming. The organizations don’t want to pay for birth control and they don’t want anyone else to pay for it either.
The United States Court of Appeals for the 10th Circuit had this to say in a decision last week, Little Sisters of the Poor v. Burwell: “Plaintiffs sincerely oppose contraception, but their religious objection cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled.”
Writing in The National Catholic Reporter last week, Michael Sean Winters, author of a blog on the publication’s website called Distinctly Catholic, praised the 10th Circuit decision, saying: “If you think the form used to object to participation is itself a form of participation, I am not sure how we, as a nation, can ever carve out religious exemptions.”
Evidently, the religious groups pressing this litigation would rather keep fighting than declare victory. Mark Rienzi, senior counsel of the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor and is involved in many of the other cases, responded to the 10th Circuit’s decision by accusing the Obama administration of an “unrelenting pursuit of the Little Sisters of the Poor” and of seeking to “crush the Little Sisters’ faith.”
Hyperbole in defense of a legal position is no crime, certainly. But the vigor with which the complicity claim is being pressed does raise the question: What’s going on? In an illuminating article last month in The American Prospect titled “Conscience and the Culture Wars,” two constitutional scholars, Reva B. Siegel of Yale and Douglas NeJaime of U.C.L.A., observe that “the new conservative campaign for religious exemptions follows a well-established pattern” in which advocates whose core positions have lost legitimacy in the public mind “look for new ways to frame their views, often borrowing from their opponents.”
The Religious Freedom Restoration Act was passed in 1993 by overwhelming bipartisan majorities in Congress and signed into law by President Bill Clinton; it was not proposed or seen as an agent of the culture wars. But it has become one, Professors Siegel and NeJaime argue: “After failing to prohibit abortion and same-sex marriage, conservatives have sought to create religious exemptions from laws that protect the right to abortion or same-sex marriage.” They explain: “If unable to protect traditional sexual morality through laws of general application, conservatives can protect traditional values through liberal frames — by asserting claims to religious exemption and by appealing to secular commitments to pluralism and nondiscrimination.” Reva Siegel has elsewhere described this strategy as “preservation through transformation.”
Will the Roberts court buy it? Or, I suppose, the question might be framed more precisely: Will Justice Kennedy? I don’t see it. The implications are too enormous. As the 10th Circuit observed, “Courts have recognized that, to opt out of military service for religious reasons, a conscientious objector must notify the government of his objection knowing that someone else will take his place.” Complicity? People have to pay their taxes, whether they have objections, religious or otherwise, to the wars they thereby help to finance. Complicity?
Of course, the court might avoid ensnaring itself in this web by allowing the circuit court decisions to continue to unfold in uniform fashion, as the justices briefly did with same-sex marriage last fall, before a nonconforming decision from the Sixth Circuit forced their hand. I hope the court doesn’t wait. This year marks the 50th anniversary of Griswold v. Connecticut, the case that identified a constitutional right to birth control. At issue now is not only the right of women who happen to work for a religious employer to receive, on par with other women, a benefit the government deems an essential part of health care. At stake is the health of civil society in an increasingly diverse country. Religious conflict is a worldwide problem that of course lies far outside the Supreme Court’s purview. But the court can do its part, as I believe it will, by labeling this anachronistic and politically driven dispute over birth control for what it is, a case too far.