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December 26, 2013

Religion and Obamacare

The Obamacare contraception mandate cases are the most important religious freedom cases we've seen in years. They aren't going to bring down Obamacare. For that, look to the subsidy challenges, especially Pruitt v. Sebelius. But these contraception cases are going to shape the way government interacts with religious beliefs for decades to come.


There are two different kinds of contraception mandate cases. The ones that have had the most press so far ask the question "under what circumstances can businesses and business owners be forced to violate their religious beliefs as a condition of doing business?" The most well-known of these cases is the Hobby Lobby case currently pending before the Supreme Court.

The appellate courts offered mixed decisions on this question. Some courts have upheld the mandate with a glib explanation that businesses cannot exercise religion with little examination of business owners' rights. Others have compared the religious rights of businesses to the speech rights of corporations upheld in Citizens United. For my money, the best examination of this issue came from the D.C. Circuit Court of Appeals in Gilardi v. HHS (PDF).

That court wrote:

The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their companies’ employer provided plans, over whatever objections they may have. Such an endorsement—procured exclusively by regulatory ukase—is a “compel[led] affirmation of a repugnant belief.” That, standing alone, is a cognizable burden on free exercise. And the burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong. If that is not “substantial pressure on an adherent to modify his behavior and to violate his beliefs,” we fail to see how the standard could be met.

Thus, completely aside from the question of whether a business can exercise religious freedom in its activities, business owners quite obviously do. To infringe that right the government would have to demonstrate a compelling purpose, something the Obama administration cannot claim for the contraception mandate since it has already exempted or excepted approximately 190 million people.

The second kind of contraception mandate case is equally important. These cases confront the question "under what circumstances can religious organizations be forced to violate their religious beliefs as a condition of existence." You will recall, the Obama administration issued an "accommodation" for religious organizations that purports to exempt them from the mandate. The religious organizations argue that taking advantage of the accommodation forces them to facilitate the very contraception coverage to which they object.

These accommodation cases haven't reached the circuit courts yet, much less the Supreme Court, but the district court litigation is a good indication of how things will go. Last week I wrote "Six Important Holdings From Yesterday's Decision Striking Down The Contraception Mandate in New York." Since then, six more district court judges have ruled on the issue, with four striking the mandate accommodation and two upholding it.

The central issue in the accommodation cases is whether it is a substantial burden on free exercise to force religious organizations to fill out a form facilitating the provision of contraceptives by a third party. The Obama administration has argued that the accommodation is a mere administrative task that doesn't require the religious organizations to do anything except fill out a form. Most of the district courts have rejected that argument, as the religious organizations have pointed out that forcing them to facilitate contraception coverage via a form furnished to a third party is equally objectionable to them as forcing them to provide the contraception coverage directly.

The discussion in Southern Nazarene University, et al. v. Sebelius (PDF) from a district court in Oklahoma is instructive:

The self certification is, in effect, a permission slip which must be signed by the institution to enable the plan beneficiary to get access, free of charge, from the institution’s insurer or third party administrator, to the products to which the institution objects. If the institution does not sign the permission slip, it is subject to very substantial penalties or other serious consequences. If the institution does sign the permission slip, and only if the institution signs the permission slip, institution’s insurer or third party administrator is obligated to provide the free products and services to the plan beneficiary.

It is no answer to assert, as the government does here, that, in self-certifying, the institution is not required to do anything more onerous than signing a piece of paper. The government’s argument rests on the premise that the simple act of signing a piece of paper, even with knowledge of the consequences that will flow from that signing, cannot be morally (and, in this case, religiously) repugnant – an argument belied by too many tragic historical episodes to be canvassed here. The burden, under [the Religious Freedom Restoration Act], is not to be measured by the onerousness of a single physical act. RFRA undeniably focuses on violations of conscience, not on physical acts.

In the first of the two decisions that upheld the mandate accommodation, Priests for Life v. HHS (PDF), the plaintiffs said that it would not burden their religious freedom to fill out the accommodation form. If that represents their beliefs, then that court came to the right decision.

But the second judge to uphold the mandate accommodation was way out of bounds. In that case, The Roman Catholic Archbishop of Washington, et al. v. Sebelius (PDF), the court actually bought the "it's just a form" argument of the Obama administration:

Here, plaintiffs seize upon the Hobson’s choice language and the Circuit Court’s observation that if the risk of a $14 million fine “is not ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs,’ we fail to see how the standard could be met.” But the question to be resolved here is not whether an acknowledged burden has been rendered substantial by the threat of financial consequences for noncompliance but whether the compelled conduct imposes a meaningful burden on plaintiff’s religious exercise at all.

The judge thus conceded that being forced to apply for the accommodation is "compelled conduct," but she simply dismissed the organizations' religious objection as not "meangingful." As I noted at the time, whether a compelled act meaningfully violates a person's religious freedom is for the person to decide, not the courts. Under precedent, the job of the courts is to decide only whether a person is being compelled to act and whether the burden to compel that act is substantial.

Once the courts get into the business of deciding whether religious beliefs -- like objections to signing a form facilitating the provision of contraception coverage -- are "meaningful" or not, you can kiss free exercise of religion goodbye. Because it is such a radical departure from precedent, I expect and pray that the Archbishop of Washington decision will be overturned on appeal.

Look for the circuit courts of appeals to grapple with the accommodations cases in the new year. If Obamacare survives that long, I expect the Supreme Court will eventually take up these cases too. God willing, the justices will affirm the principle that the government should never be allowed to decide whether a religious belief is "meaningful" or not.

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posted by Gabriel Malor at 01:37 PM

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