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February 10, 2012

A Question from Marty Lederman

Marty Lederman sends in the following in response to some of the discussion here about the contraception mandate.  I've opened comments for substantive responses to the specific questions that Marty asks.

I, too, am a longstanding proponent of RFRA, and of religious exemptions where the standards of RFRA are satisfied.  But Marc, before one even gets to the question of the "least restrictive means" of advancing the government’s public health interest, the employer would have to demonstrate a substantial burden on its exercise of religion.  And on that question, I remain genuinely baffled, because it seems to me the burden on religious exercise—the compelled “complicity with evil”—has merely been presumed, rather than explained, by virtually everyone involved in this debate.  

I am taking as a given a particular employer’s sincere belief that the use of contraception is sinful or greviously wrong, on religious grounds—and that material cooperation with that wrong would itself be wrongful.  Nevertheless, I would welcome anyone's careful and reasoned articulation of how the HHS rule would substantially burden an employer's religious exercise or, more to the point, how it would require material cooperation with evil under Catholic doctrine (or the equivalent under other religious precepts), or (as we now so often hear) "force the employer to choose between complying with the law or religious commands."  

Any employer's funds are, after all, invariably and regularly, but indirectly, used for activities that the employer considers wrong or sinful—through the government's use of taxes, the employee's use of salary, the employee's use of the employer's phone and computer (which of course might be used to purchase contraception, procure abortion services, etc.), and so on.  How is this case materially different?

Here, the state would merely be requiring the employer to offer a group health plan to its employees that covers all forms of medical care beneficial to health, including contraception.  (Contraception, that is to say, is hardly the focus of such a plan—it is but one of countless forms of health care that are required to be covered.)  The cost of the premiums would presumably be shared by the employer and employees, although it's not clear that federal law actually requires an employer payment.  (I may be wrong about that, but I don't believe federal law would require the employer to subsidize that plan at all—such subsidization is a function of market arrangements between employers and insurance companies.  I'll proceed here, however, on the assumption that, at least as a practical matter, virtually all employers would choose to pay part of the cost of the plan, in order to lower the premiums for their employees.)  The cost to the employer in subsidizing the group plan will, in turn, be reflected in lower salary payments to its employees.  In other words, the employer would have transferred the money in question to employees, anyway, but now that exchange will take a different form, one that facilitates a lower cost of health care through efficiencies of scale.  

The employer would not "choose" for the health plan to include contraception—that would be a standard condition as a requirement of federal law (just as the postal employee cannot choose which letters to deliver, including to the abortion clinic, etc.).  And, of course, and most importantly, the plan will not be used to subsidize purchase of insurance unless a particular employee chooses to use it in that way.  In other words, there will always be intervening private choice, akin to that in the sort of voucher plan that many of the writers on this blog have long insisted breaks the chain of responsibility and endorsement between the state and religious education, social services. etc.  And if and when an employee chooses to use the plan to cover contraception, not only will the employer not be required to administer or hand over the contraceptives (this is not, in other words, a case analogous to the doctor being required personally to perform an abortion), and not only will the funds not come directly from the employer, but the employer will not even know about the insurance company's reimbursement—just as if the employee had used her wages from the employer for the same purpose.

Moreover, the employer will remain free to express—to its employees, to the public, or to any other audience of its choosing—in the most vigorous of terms, that it believes the use of contraception is sinful; that it discourages and condemns such use by its employees; that it opposes the HHS rule; and that it would never willingly associate itself, however indirectly, with an insurance plan that reimburses for such contraceptive use.  That is to say, there will be no risk of any confusion about where the employer stands on such issues.  (As I understand it—woefully inadequately, no doubt—this also forecloses the possibility of “scandal” under Catholic teachings; but I welcome further insight on that doctrine, of which I know very little.)

Under these circumstances, is there any plausible case that the employer is "complicit" in the use of contraception, under any Catholic or other religious doctrine?   The fact that many of the Catholic employers in question—those who have a sincere and genuine belief that contraception and its willful and material facilitation are sinful—do, in fact, offer such plans in conformity with similar state laws surely offers further reason to question whether there is a strong case that such employers are "cooperating with evil."  (Indeed, as I understand it, under most state laws the employer is not required to provide group plans at all, and therefore there is a stronger sense of employer "choice" in those cases than there would be under the HHS rule.)

These are not rhetorical questions—I'm genuinely curious as to the answers (as are my students, who have repeatedly been asking such questions in class).  The Dana Dillon post (http://catholicmoraltheology.com/hhs-roundtable-cooperation-with-evil/) to which Rick linked last week was helpful, as was the Vincent Miller post to which Dillon linked; but frankly, they merely strengthened my doubts about whether this is really a case involving "material cooperation with evil."

Posted by Marc DeGirolami on February 10, 2012 at 10:19 AM in DeGirolami, Marc | Permalink

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Marty, thanks for the extremely thoughtful set of questions. I'll start the ball rolling with some divisions that might be helpful in getting the table set. It seems to me that there are two underlying issues in your question: First, is the arrangement contemplated by the HHS plan a "substantial burden" on Roman Catholic employers, within the meaning of RFRA and cases interpreting it. Second, does the arrangement contemplated by the HHS plan implicate the cooperation with evil doctrines.

As to the latter, I defer to Dana Dillon's piece and others who know more than I do. I do think that this point in Dillon's summary might bear on the discussion: "Third, given the great evil involved, they would have to be able to show that the Catholic institutions’ involvement is as remote as it can possibly be." To my mind, that is a kind of mirror image of the "least restrictive means" component of the substantial burden/compelling interest RFRA test. Dillon seems persuaded that this feature of the cooperation with evil analysis is tantamount to mediate material coooperation in the HHS situation, but I thought it a stronger case for its immediacy.

But the larger point I thought to raise is that even if it is true, as Dillon suggests, that the cooperation with evil arguments are not entirely useful in this context, I still don't think that one needs to rely on those arguments in order to satisfy the RFRA standard of "substantial burden." Your next question may well be, well, what qualifies as a substantial burden? That's a reasonable question; but whatever it is, it need not rise to the level of cooperation with evil to qualify.

Posted by: Marc DeGirolami | Feb 10, 2012 10:52:21 AM

Agreed, Marc. But the "cooperation with evil" and "forcing the employer to make a choice between complying with law and violating religious obligations" are the only two explanations I've heard as to why there's any burden at all here on religious exercise -- and they're certainly the tropes that have dominated the public debate. I'd be eager to hear of others.

Posted by: Marty L. | Feb 10, 2012 10:55:38 AM

I'm no moral theologian, and so this question might be missing something basic, but doesn't the risk of scandal require the bishops to fight tooth and nail against the mandate? In other words, if the bishops dropped their opposition to the mandate itself and relied solely on a "yes, contraceptive is covered in our plan, but it's bad" message, wouldn't that risk creating the perception that the use of contraception is not so bad?

Posted by: rob vischer | Feb 10, 2012 11:35:52 AM

I had an additional thought with respect to the issue of "scandal." On your reading, Marty, the possibility that anyone would be confused with respect to the Church's beliefs is foreclosed because it and its agents still remain capable of dispelling any confusion by expressing themselves against the use of contraception generally and about the unjustness of the mandate.

The trouble with this understanding is that it makes something like the Hawaii plan more problematic than the mandate as now in place. That is, under the Hawaii plan, religious employers must inform their employees about other avenues to obtain contraception. But by doing so, they will inevitably be creating confusion about where the institution stands on the issue of contraception. The possibility of dispelling that confusion by contrary expressions in alternative venues does not, it seems to me, mitigate the scandal (in the sense intended here) that would be given by making these referrals.

My view is that the idea of scandal involves the possibility that people will be misled by the Church's actions not to understand the Church's true view. The fact that such confusion can be mitigated later on by contrary statements, or that the Church can go on expressing its disagreement with the mandate, is not centrally material to the issue of whether it is reasonably perceived to be participating (with whatever degree of directness we can stipulate to) in an evil act.

Posted by: Marc DeGirolami | Feb 10, 2012 11:39:44 AM

If I am a bus driver, and someone rides on that bus route to obtain an abortion, I have materially cooperated with that abortion, albeit remotely. I think most would consider this an example of licit remote material cooperation with evil, and that the reasons -- supporting my family, providing a service to the community -- outweigh the harms, even if I am morally certain that a certain percentage of riders will use my bus service to obtain an abortion. If a bus driver were to lodge a "conscience objection" to driving a route that stopped by an abortion clinic on the grounds that he should not be made to materially cooperate with abortion, it is unlikely she would find much support.

If I drive a pregnant woman to an abortion clinic, assuming I have not endorsed the abortion, this is still material cooperation with the evil of abortion, but not nearly as remote. I think if an employer requested that an employee do this (outside of something like a taxi service -- I mean something like a boss ordering an employee to drive his daughter to an abortion clinic), his conscience objection would be on firmer ground.

Marty Lederman's example of the mail carrier is also apt. It is not a burden on conscience to require the mail carrier to deliver that day's mail, even if it includes, say, ransom notes from hostage takers. This is different from someone being specifically told to deliver a ransom note.

In my judgement, this is the line being crossed here. As noted, an employee can use cash compensation for anything she wishes, including things disapproved of by her employer, and the employer's complicity for those things is minimal. But when the employer facilitates that action, it is implicated to a greater degree, and are perfectly justified in resisting being so compelled.

Posted by: JohnMcG | Feb 10, 2012 11:40:21 AM

My message crossed paths with Rob's, but I agree with his point about scandal as well.

Posted by: Marc DeGirolami | Feb 10, 2012 11:51:47 AM

This one doesn't seem so hard to me. If I pay you $1000 for services you provide, and you go spend that $1000 on prostitutes, I'm not responsible for what you do with that $1000. We had an even exchange of money for services; what you do with the money is up to you.

If, instead, the government says I have to take some of that $1000 and use it to give you a voucher for $50 in services from the local whorehouse, the government is forcing me to promote something I find morally objectionable. Even if employees can choose whether or not to use the voucher, the government is forcing me to steer a portion of my money in a way so that the portion can ONLY be used for a purpose I find objectionable, and in a way that will, as a general matter, only tend to increase activity I find objectonable.

Also, if I understand Mr. Lederman's argument correctly, it would apply equally to a mandate for Catholic instutions to provide abortion coverage.

The fact that it's the government coercing me to do it -- and that I can tell everyone I don't really like it -- is no answer. Any more than it would be an answer to say that forcing a Jew to recite a Hail Mary wouldn't be oppressive because the Jew could always say the government made me do it.

Posted by: Alexander | Feb 10, 2012 2:20:53 PM

I'd like to expand on Rob Vischer's point about accepting a law, without enough resistance, as scandal. It seems to me that even apart from Catholic theory of scandal, there's a real danger that certain formulations of duress theory, or the "government made me do it," would systematically reduce ALL free exercise claims to zero.

Here's the extreme reduction: A rape victim is never guilty of adultery, if married, or premarital fornication, if single, because of course she did not willingly do anything. So let's say that some act of religious exercise, whether of commission or omission, is defined by my faith's internal rules as requiring intent. If some criminal kidnaps me and keeps me from going to Mass on Sunday, I am not guilty of missing Mass. If I go to confession and apologize for that sin, the priest tells me, "no, my son, you did not sin; you were under duress." If the criminal forces me to COMMIT a sinful act, it might be the same, or perhaps at some point I am obliged to accept death rather than cooperate, but let's set that aside. (For example, maybe I need not die rather than watch a porn movie, but should die rather than rape or murder another at the criminal's insistence. But again, set that aside.)

Now, replace the criminal with the government. If the government bars me from going to Mass, say, by banning all Masses, I presume I get the same "free pass" from my Church. I did not sin, because the government made me do it.

Then, suppose that government adopts RFRA or First Amendment or whatever, but maintains the ban on Mass. I claim a burden on my exercise, and point to the Catechism page requiring Mass attendance. The government lawyer points to my Church's rules giving me a pass for government-forced action/inaction, and says "therefore, we have not burdened you." That, I submit, is absurd.

Consequently, any measurement of burden can only be assessed in one of three ways:

1. Any government-mandated act is per se a zero burden if your faith counts only intentional acts (i.e., it's not a strict liability Church). That's the absurd result.

In calling that absurd, I stress that I'm not making a slippery-slope argument. I'm making a "collapses on itself every time" argument. To repeat: Government mandates X. Church alleges X as RFRA burden. Church's own canon law says X is not sinful if forced, and government mandate counts as force. Ergo, no mandate, once enacted, is a RFRA burden, by the fact of having been enacted.

2. Government duress must be placed aside 100%. We ask only whether the government-mandated act would be a wrongful act in your faith if you did it on your own without the mandate (or, if the government rule is a prohibition rather than a mandate, whether the action would be one you would take but for the ban). If it would be wrongful absent a mandate, it is a burden to add a mandate (perhaps a justified burden, but a burden).

That second option is my tentative view.

3. Some undefined middle-ground, which takes duress into consideration but is not dispositive.

As I read Marty's very thoughtful piece above, I think at some points it flirts with what I consider option 1. Because I have never seen Prof. Lederman be absurd, I resist that conclusion. However, it is suggested by his noting that the Church has followed the law in States with mandates. I think at a minimum there's a danger of that reduction to the absurd, so we need some construct that prevents the collapsing-to-zero reduction, and until I see a third way, I'm going to stick to my second option.

I suspect I might be missing something obvious, and will be thankful to whoever points it out. Otherwise, why doesn't every mandate reduce to "no burden," at least insofar as Church rules allow for duress as preventing intent?

Posted by: joe reader | Feb 10, 2012 4:48:56 PM

As a matter of precedent, the most closely analogous Supreme Court decision is probably United States v. Lee, in which the Court accepted that an Amish employer's compelled payment into Social Security for his employees burdened the exercise of religion. The Court proceeded to uphold such compulsion as "essential to accomplish an overriding governmental interest," but that determination was based on the comprehensive nature of Social Security and the difficulty of administering a scheme of judicially recognized individual exemptions. Now that Congress has required individualized consideration of exemptions, the holding of Lee is suspect, but its recognition of a burden remains.

Similarly, when New York courts addressed that State's contraceptives mandate, which included a similarly narrow exemption for religious institutions, those courts had no difficulty recognizing the burden that the mandate placed on objecting religious institutions.

Posted by: Kevin C. Walsh | Feb 10, 2012 10:47:53 PM

I do not think the providing of contraception insurance in response to a government mandate is illicit cooperation with evil even assuming the use of contraceptives is immoral. But I do not think claimants (assuming they are in good faith) should have to show their religious views about cooperation with evil are correct. Determining good faith itself raises Establishment Clause concerns though they must be borne for any acceptable system. But I do not think that religious claimants beliefs have to be shown to be reasonable to prevail. For government to make that determination seems to me to implicate Establishment Clause concerns too serious to bear.
Nonetheless, I think on the question whether forced financing of insurance forces impermissible cooperation with evil (assuming some of the coverage involves immoral activities), I think Marty's question are very good ones.

Posted by: Steve Shiffrin | Feb 11, 2012 9:20:02 AM

Thanks to all. On United States v. Lee, it seems to me that on the question of the gravity of the burden, the Court was very brief, exactly for some of the reasons that Steve mentions. It was loath to inquire too deeply about how substantial the burden was, and satisfied itself with a judgment about sincerity. It did note, in a footnote, that the basis for the claimant's objection had its source Scripture. But beyond this, it did not want to inquire too deeply as to, for example, the centrality of the belief. On the other hand, the government did not challenge either sincerity or centrality in Lee.

Posted by: Marc DeGirolami | Feb 11, 2012 9:29:04 AM

The blogger DarwinCatholic has a useful analogy:

"An employer announces that they will provide "2nd Amendment Coverage" to all their employees. Any employee who wants can get a "free" Glock 9mm pistol as part of this coverage. He or she can also get unlimited ammunition. Of course, no one is required to get a gun, and the company is not encouraging anyone to do anything illegal or dangerous with these guns. Guns are perfectly legal, and any employee who wanted to could obviously go out and buy a Glock and ammunition for it with his salary if he wanted. However, I think basically everyone would agree that this "2nd Amendment Coverage" would represent the company far more directly being involved in gun ownership and gun promotion than a company which simply payed its workers and didn't prevent them from buying guns with their salaries. This employer would be engaged in "material cooperation" with gun ownership and gun culture in a way that other employers were not."

Imagine that the government required that all employers pay out part of employees' wages in the form of subsidized gun purchases. If you conscientiously objected, would it be responsive to write the following?

The employer would not "choose" for the wages to include gun purchases -- that would be a standard condition as a requirement of federal law . . . And, of course, and most importantly, the plan will not be used to subsidize purchase of guns unless a particular employee chooses to use it in that way. In other words, there will always be intervening private choice . . . Moreover, the employer will remain free to express—to its employees, to the public, or to any other audience of its choosing—in the most vigorous of terms, that it believes the use of guns is wrong; that it discourages and condemns such use by its employees; that it opposes the government rule; and that it would never willingly associate itself, however indirectly, with gun purchases.

Would that be sufficient to answer any concerns about such a rule?

Posted by: Stuart Buck | Feb 11, 2012 9:52:14 AM

Above it was said: “The employer would not "choose" for the health plan to include contraception—that would be a standard condition as a requirement of federal law.”

This, I take it, is supposed to show that the employer wouldn’t be cooperating with contraception (sterilization, etc). But it doesn’t strike me as cogent reasoning.

Suppose you are a vegetarian. Suppose too that the government requires you to buy a meal plan at the local diner, and that it requires all diners to serve meat with every meal. You object that you shouldn’t be forced to choose meat. Could I legitimately answer you by saying, “You aren’t being forced to choose meat, you are just being forced to choose *a meal*; the law requires all meals to contain meat, so you aren’t really choosing meat over anything else”? No, this would not be a legitimate answer. That’s because part of what you object to is that meat is now, by law, the only option.

Putting it differently: The vegetarian objects to being required by law to buy meat. It’s no consolation to him to be told that it’s not meat in particular that he’s buying, because after all, meat is all there is to buy. To respond to him in that way is to point to one of the things he’s objecting to as a way of telling him not to object.

Back to the main topic: the requirement that all insurance plans cover contraceptives, sterilizations, etc. isn’t a separate fact from the mandate--a fact that means that the insurance purchaser isn’t cooperating after all. The requirement is a part of the mandate itself. It’s not part of the solution, it’s part of the problem.

A Catholic institution would rather not choose to buy contraceptive coverage. If someone (the K of C?) were to create an insurance plan that didn’t cover contraceptives (etc.), the Catholic institution will be required by law not to choose that plan, but some other one. The Catholic institution, if it wished to comply with the law, would check the plan to make sure that it did, in fact, cover contraceptives (etc.). So they really would be choosing contraceptives and the like.

Maybe I’m missing something.

Posted by: Michael Gorman | Feb 11, 2012 2:23:26 PM

The Catholic Church pays salaries to a secretary that includes Medicare taxes. The taxes are used for end of life care that includes discussions and options concerning euthanasia the CC thinks "evil" (the word is hard to take seriously in this context -- the vast majority of Catholics don't think birth control is "evil," a word most apply more to the like of rape or something). Is the CC on the road to perdition here too? Why isn't employee based health care akin to that? The CC's own clinic (at a college, e.g.) doesn't have to distribute it. If money is so fungible that the contraceptives compromise is invalid, the lines we draw to prevent illicit funding for parochial reasons are invalid too the other way. And, as to U.S. v. Lee vs. RFRA, the previous test was under the pre-Smith rule where individualized discretion and compelling state interests were the rule.

Posted by: Joe | Feb 11, 2012 10:57:30 PM

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