Saturday, November 7, 2015

Supremes Take Up Contraception Mandate Accommodation

The Supreme Court yesterday agreed to hear the cases testing whether the government's accommodation to the "contraception mandate" violates the Religious Freedom Restoration Act.

The move was expected. The Court will likely hear oral arguments in March 2016.

The cases involve HHS's requirement under the Affordable Care Act that employers' health insurance plans include certain kinds of contraception, and the government's accommodation to that requirement for religious non-profits. (Religions are already exempt.) The accommodation simply requires non-profit that objects to providing contraception on religious grounds to so notify the government (a letter will do, or the non-profit can use a government form). At that point, the government requires the insurer or third-party administrator to provide contraception, free of charge, directly to the non-profit's employees.

Some religious non-profits argue that the accommodation itself violates the RFRA, because their notification to the government triggers the provision of contraception. Seven circuits have rejected that claim; only the Eighth Circuit has accepted it. We posted most recently, on the Eighth Circuit's ruling, here.

The accommodation isn't a new idea. The Court itself identified it as a possible solution to objecting closely held for-profit corporations in Hobby Lobby. But the Court didn't say whether it would violate the RFRA--that issue simply wasn't before the Court.

The parties in the case will argue whether the accommodation creates a "substantial burden" on their religious freedoms and, if so, whether it is narrowly tailored to meet a compelling government interest.

The non-profits' arguments push the bounds of the RFRA. After all, if an accommodation can be a "substantial burden"--and one that operates in such a minimally intrusive way--it's hard to see what couldn't be a substantial burden on some religion. Moreover, to get to the non-profits' result, the courts have to accept their view of how the law works--that the accommodation triggers the provision of contraception (in contrast to the view that the law itself triggers the requirement that insurers provide contraception). The Eighth Circuit (and the Eighth Circuit alone) got there, but seemingly by deferring to the non-profits' view of their own religion, as I explained here. Under RFRA, the courts certain defer to a religion on its own tenets and beliefs, but it's hard to see why the courts should extend that deference to a religious belief about the way the law works.

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I really can’t understand why corporations (whether closely held, public, non-profit, or otherwise) are entitled to religious exemptions from generally applicable laws. The whole point of the corporate form is that the corporation is treated as a separate entity from the corporate shareholders, thus shielding shareholders, etc. from liability. Why should corporations be able to claim that they are not the people who own them for the purposes of obtaining the state benefit of liability immunity, then turn around and claim that they are those people for the purpose of their protected religious beliefs? I understand that the RFRA refers to “persons,” and that that term has, partly for the sake of convenience, been interpreted to include corporate entities in other contexts, but I do not believe that such an entity, as a matter of law, should be able to impute to itself the very personal, individualized beliefs of its human members (members who, given human nature, actually probably have varying interpretations of the corporation’s overall declared ideology).

Either you are the corporation, in which case I can sue you on its contracts, or you are not, in which case show me the proof that an intangible legal construct believes in Jesus or get out of my court. Accommodations for religious non-profits (which I agree in some cases are desirable) should be handled at a case-by-case policy level, and should not arise out of a generalized fiction that a corporate entity has a bona fide religious belief that can be substantially burdened.

In any case, I agree that the substantial burden argument based on the alleged “trigger” at issue is pretty far-fetched. Similar logic would hold that a religious accommodation for a conscientious objector is undermined if the objection results in the government drafting a different soldier to fill its combat requirements, thus making the objector somehow “responsible” for the later violent actions of that soldier. There is a fundamental difference between doing something yourself, and the government doing it because you refuse. If the line is drawn anywhere between conduct that “substantially burdens” religious conduct and that which does not, it should at least be drawn there.

Posted by: Josh | Nov 18, 2015 7:28:34 AM

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