Prof. Alan Brownstein on this Term's religious-freedom cases

Those of us in the First Amendment area know well that Prof. Alan Brownstein (UC-Davis) is among the most thoughtful and insightful -- as well as the most decent and charitable -- scholars now working.  He shared with me the following reflection on religious freedom and the different reactions to the church-state cases before the Court this year.  I urge all MOJ readers to, as they say, "read the whole thing": 

I have been working in the church-state area for 25 years but I don’t think I have ever felt quite as out of synch with my colleagues in the academy as I do this year. Two important church-state cases will be decided by the Supreme Court this term: the Town of Greece case dealing with the offering of state-sponsored prayers before town board meetings and the Hobby Lobby case involving a RFRA challenge to the Affordable Care Act’s contraceptive mandates.

 

I don’t suggest that either dispute is particularly easy to resolve. But I do think that both cases raise serious religious liberty issues. As a matter of law and a recognition of social reality, I think the plaintiffs in both cases raise serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, I think there are important parallels between the two cases. In particular, some of the arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case. 

Apparently, very few church-state scholars and commentators, including many of my colleagues that I greatly admire and respect, share my perspective. Instead, commentary seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to what I am about to write), most liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs’ claims in Hobby Lobby and related cases. Conversely, most conservative commentators see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs’ claims in Town of Greece. Of course, there may be a good reason why I am odd man out. Maybe I’m just plain wrong to see parallels between these two cases. But I worry that political and cultural polarization is making it harder for all of us to see and appreciate the legitimate concerns of claimants who from one perspective or the other are on the wrong side of the culture war dividing line. And I think the protection of religious liberty is undermined if we only choose to protect it when nothing that we value personally is at stake. 

Again, generally speaking, liberals especially value gender equity and see universal access to medical contraceptives as an important public health and woman’s rights concern. For liberals, protecting religious liberty in a situation which even risks the burdening or sacrifice of these interests is hard to do. Conservatives value government sponsored religious activities such as state sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as particularly costly. Put simply, if we expect other people to bear what they experience as real and significant costs to protect religious liberty, we have to be prepared to demonstrate that we are willing to accept costs to interests that we value as well. But In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little if any weight to the religious liberty interests of the Town of Greece claimants. 

Let me give some specific examples. In vernacular terms, both liberals and conservatives raise an incredulous, “What can they possibly be complaining about” question in one case or the other. In Hobby Lobby, the suggestion seems to be that in the context of the case, there is no reason to think that the plaintiffs’ rights are abridged. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement decisions. Being in commerce and employing hundreds or thousands of people means that a lot is going to happen in your business that other people control. That the way the world is and how it has to be. In Town of Greece, the argument is that town board meetings necessarily involve exposure to a lot of expression from both board members and the public. If you attend the meeting, you will have to sit through a lot of speech that you find objectionable. That’s the way the system works. Learn to live with it. 

I think the answer here to the “What can they possibly be complaining about” question in both cases is simply that religion is different. A commitment to religious liberty means that burdens relating to religion are evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct the owner or manager’s religion prohibits requires a different analysis than other regulatory burdens receive. Having to sit through a state sponsored prayer is different than having to sit through a discussion of the municipal budget. What is key here is that if religious liberty claims deserve attention in one of these contexts, regardless of the way things generally work, religious liberty claims deserve respect in both contexts. 

Or consider more focused and sophisticated arguments. Some liberal commentators argue that the burden on religious liberty in cases like Hobby Lobby is too indeterminate to justify requiring the government to take any steps that might alleviate it. For example, an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may decline to continue to offer a health insurance plan to its employees.  The employer will have to pay a penalty for doing so but that payment will probably be far less than the savings it incurs by ending employee health care benefits. True, there may be other costs associated with discontinuing employee health insurance coverage. But it is unclear whether and in what circumstances those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty. 

It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have negative consequences on worker morale and the retention of employees.  Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. I would characterize this argument as questioning whether a risk of adverse consequences constitutes a cognizable burden on religious liberty. The employer does not know what will happen if it protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer’s worry can hardly be characterized as mere speculation. 

I think the claimants in Town of Greece identify very similar risk based burdens on their religious liberty in their coercion arguments. They worry that the town board members they will be petitioning for support or assistance will be alienated by the claimants’ refusal to stand, bow their heads, or otherwise participate in state sponsored prayers at the beginning of the board meeting. Of course, no one knows whether board members will be alienated or whether they will allow their feelings about claimants not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are there. 

I think significant risk of adverse consequences, that is, reasonable grounds for worrying about adverse consequences, should be understood to burden protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on religious liberty deserve recognition and justify steps to alleviate them. In Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on religious liberty should be recognized and steps taken to alleviate them. I think the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases. 

Another criticism of plaintiffs’ claims focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior or that support for such behavior may be attributed to them. These concerns transcend material support and emphasize the expressive dimension of being associated with unacceptable conduct. I think these concerns are captured in the Catholic idea of “scandal.” Liberals dismiss claims based on complicity as being too attenuated. Concerns about misperception are also deemed insignificant since they can be so easily remedied by the religious nonprofit publicly proclaiming its opposition to the conduct at issue. 

A similar problem with misperception, indeed I suggest an arguably more powerful example of it, arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what I call a “we” prayer rather than an “I” prayer. The member of the clergy offering the prayer purported to be speaking to G-d in the name of the audience and the community. Sitting silently by, much less standing or bowing one’s head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. I consider this to be as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in my judgment, if either misperception argument deserves to be taken seriously, the misperception arguments in both cases deserve to be taken seriously. 

Here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases but seem unconcerned about the claimants in Town of Greece. In the contraceptive mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government’s requirements. In Town of Greece, however, by publicly disassociating oneself from the offered prayers at the town board meeting, dissenters expose themselves to the risk of closed ears to their petitions and adverse decisions on matters before the board. The risk of adverse consequences is increased by their attempts to avoid misperception and misattribution. 

I know, of course, that Town of Greece is a constitutional law case and the contraceptive mandate litigation primarily involves statutes and public policy. Thus, one might plausibly argue that town board prayers are constitutional, while also insisting that as a public policy matter they are a bad idea or at least have to be carefully structured in ways to minimize their coercive impact. I don’t see conservatives making this argument, however. They seem to ignore the burden on religious liberty both for constitutional and policy purposes. 

I think there are other arguments to support my suggestion that people who take religious liberty seriously should be respectful of plaintiffs’ claims in both Town of Greece and Hobby Lobby (and related contraceptive mandate cases). But this blog post is long enough. 

My key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case.  But it does reflect a willingness to take such claims seriously even when we are uncomfortable in doing so.