Commonweal Symposium, U.S. v. Lee, and Rocky Mountain Religious Freedom Tour

As Rick kindly pointed out, I contributed an essay to Commonweal's symposium on the US bishops' document on religious freedom alongside Peter Steinfels, Bill Galston, Cathy Kaveny, Doug Laycock, and Mark Silk. Many of the themes in my contribution will be familiar to MOJ readers, most especially trying to raise issues beyond the current controversy over the HHS mandate to the larger matters of civil society and pluralism that I think are at stake. I'm grateful to Paul Baumann for the invitation to participate and to my fellow contributors.

I do want to signal an ongoing but friendly disagreement with Cathy Kaveny, who I think vastly overstates the importance of U.S. v. Lee as the case "most on point" or "decisive" (quoting from her essay) with regard to the HHS mandate. The most obvious distinction is that Lee involved a general tax to finance a government program (there Social Security, but the same logic would apply to national defense or other examples), while the HHS mandate is a requirement that employers include a cost-free benefit in their health plans (or be fined if they don't provide coverage at all). Surely that is a distinction with respect to the burden on religious free exercise and the ease with which the government can accommodate religious objectors. The analogous difference, I think, is between (a) requiring that everyone (including religious pacifists) pay taxes that fund national defense (a very weak free exercise claim), and (b) forcing religious pacifists to serve in the military (a much stronger free exercise claim).

Furthermore, the creation of a range of exceptions (for mini-med plans, for example) already in the Affordable Care Act's mandates, including an exemption for some religious employers with regard to preventative services (about which I wrote here), puts the HHS mandate in a much worse position on the narrow tailoring prong of strict scrutiny. If the collection of Social Security taxes were subject to a set of exceptions (which the Court in Lee went to great lengths to note was not the case, though there was a later legislative accommodation), then Lee would indeed be a good case for those defending the legality of the the government's position in the HHS mandate litigation. Once the government starts granting some exemptions but denying others, the government will have an extraordinarily difficult time satisfying narrow tailoring. Cathy writes about Lee:

Moreover, the Court noted that “it would be difficult to accommodate the comprehensive Social Security system with myriad exceptions flowing from a wide variety of religious beliefs.” The administrative difficulty would be even greater with comprehensive health reform, since objections would run not merely to payment, but to various and sundry covered services.

This underappreciates the legal importance of the "myriad exceptions" that are already in the ACA for various employers. I should also think accommodating religious objectors in tax collection poses the much greater administrative difficulty, rather than enforcing a regulatory mandate (riddled with exemptions) for health coverage. And on that score, HHS let the horse out of the barn a while ago.

I'll be speaking on the HHS mandate, Hosanna-Tabor v. EEOC, and other developments in the law of religious freedom on Wednesday in Denver and on Thursday in Colorado Springs.