October 03, 2013
RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion
That's the title of a very interesting, thoughtful, and provocative piece recently posted to SSRN by BYU law prof Fred Gedicks and co-author Rebecca Van Tassel. Downloadable here. The abstract:
surrounding use of the Religious Freedom Restoration Act to exempt
employers from the Affordable Care Act’s “contraception mandate” is
moving steadily towards eventual resolution in the U.S. Supreme Court.
Both opponents and supporters of the mandate, however, have overlooked
the Establishment Clause limits on RFRA exemptions,
The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that accommodation not impose material burdens on third parties who do not believe or participate in the accommodated practice.
While there is little doubt that RFRA facially complies with the Establishment Clause, there is also little doubt that it violates the Clause’s limits on permissive accommodation as applied to the mandate. RFRA exemptions from the mandate would deny the employees of an exempted employer their ACA entitlement to contraceptives without cost-sharing, forcing employees to purchase with their own money contraceptives and related services that would otherwise be available to them at no cost beyond their healthcare insurance premium.
Neither courts nor commentators seem aware that RFRA exemptions from the mandate violate settled permissive accommodation doctrine, by shifting material costs of accommodating anti-contraception beliefs from the employers who hold them to employees who do not. One federal appellate court has already mistakenly dismissed this cost-shifting as irrelevant to the permissibility of RFRA exemptions from the mandate.
The impermissibility of cost-shifting under the Establishment Clause is a threshold doctrine whose application is logically prior to all of the RFRA issues on which the courts are now focused: If RFRA exemptions from the mandate violate the Establishment Clause, then that is the end of RFRA exemptions, regardless of whether for-profit corporations are persons exercising religion, the mandate is a substantial burden on employers’ anti-contraception beliefs, or the mandate is not the least restrictive means of protecting a compelling government interest.
This flips freedom on its head. The constitution requires the government to coerce religious believers? There's no third party "burden" here because no one is "entitled" to have someone else pay for their contraception in the first place. The only "entitlement" here is entitely the government's own artificial construct--a "permissive" mandate that has never existed before. Permissive mandates cannot be used to attack "permissive" accommodations. This is because a "duty" such as this mandate cannot transform mere freedom into a constitutionally significant "negative externality," since the third parties weren't entitled in the first place. Gedicks cites no Supreme Court cases holding that such an externality existed based on the deprivation of a sui generis government mandate. On the contrary, constitutionally speaking the "right" to abortion and contraception has never meant that some other citizen must pay for it. Not even the government must pay for it, under actual Supreme Court precedent. No "third party burden" exists under the Establishment Clause when the government's coercive measure is the sole source of the duty to pay in the first place. That makes the situation entirely unlike Gedicks' sole precedential source, Thornton, which didn't contain an underlying government mandate that everyone work on Sunday, so as to be parallel to the mandate here. Nor is it possible to consider RFRA claims "favoritism" as Gedicks admits must be shown under his Establishment Clause theory, because unlike every parallel he tries to draw, the birth control mandate already excludes tens of millions of women for secular reasons, and thousands of others for religious reasons, despite them being in similar situations as women working for RFRA claimants. You can't be playing favorites with an accommodation when many similar entities are being let off the hook. Gedicks admits that his steroidal view of the Establishment Clause would undercut the Title VII exemption for religious organizations and the Amos case upholding it (which cannot be distinguished as a "church" case because that exemption extends far beyond churches). Gedicks' citation of the Tony Alamo Foundation case illustrates the weakness of his thesis: Gedicks is forced to take what he concedes is dicta and extrapolate it beyond itself, and this is his second best case next to Thornton. He does the same throughout the article when he asserts premises as if they are settled legal doctrines and then footnotes those premises by citing mere law review articles.
Posted by: Matt Bowman | Oct 3, 2013 11:23:20 PM
It should be noted that it *appears* that one implication of our friend Fred's paper is that his argument is not limited to Hobby Lobby, or even to Notre Dame -- even the exemption for "houses of worship" is, it seems, unconstitutional.
Posted by: Rick Garnett | Oct 4, 2013 12:09:40 PM
Not only is the contraception mandate a substantial burden on an employer's anti -contraception beliefs, but precisely because it is not necessary nor is it proper to coerce every Insurance Company into being a peddler of contraception, which is not Life affirming or Life-sustaining, and is thus not healthcare to begin with, that any government would be in error to claim coercing persons to have to choose, as Father John Jenkins has stated, between violating their Faith and morals, or going without health insurance, is not the "least restrictive means of protecting a compelling government interest".
Posted by: Nancy | Oct 11, 2013 11:15:07 AM
Oops, although clearly coercing every insurance company to be a peddler of contraception is not the least restrictive means of protecting those persons who for religious and/or moral reasons do not want to condone the contraception mentality and thus the sexual objectification of the human person, that last sentence should read, ...is the least...
Posted by: Nancy | Oct 11, 2013 11:24:02 AM
The conclusion is an example of reductio ad absurdum, discrediting the courts' crazy Establishment jurisprudence. I hope someday someone will do a biographical study of the Supreme Court's hostility to religion.
Posted by: Eric Rasmusen | Oct 14, 2013 11:24:17 AM
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