How a Radical Argument About the Birth Control Mandate Went Mainstream

The law, lawyers, and the court.
Nov. 26 2013 2:32 PM

Obamacare and Religion and Arguing off the Wall

What the New York Times and the courts are missing in the birth control mandate fight.

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Those three decisions offer some good reasons to believe that free speech and religious freedom claims are critically different when it comes to corporate rights. But the Times story elides these differences throughout. First, the Supreme Court rested its corporate personhood decision in Citizens United largely on the rights of listeners. The idea was that allowing companies an unfettered ability to speak before elections would benefit voters by enriching their access to diverse information and perspectives. By contrast, at least in the contraception mandate litigation, there are no “listeners” and no analogue to them. No one other than the owners of Hobby Lobby will find their constitutional interests promoted if they win.

A second difference is that extending religious freedom rights to corporations would be unprecedented. Never has the Supreme Court suggested that profit-seeking companies may exercise religious freedom rights. In contrast, many Supreme Court cases before Citizens United had indicated if not outright insisted that corporations do enjoy speech rights. These corporate religious freedom cases are truly without precedent, yet they are coming to be viewed by the media and the courts as though they are part of a natural legal progression.

Finally, and critically, there is an important difference of constitutional text and doctrine between free speech and free exercise claims: the Establishment Clause, which implements the separation of church and state. Simply put, there is no free speech analogue to the Establishment Clause. That is not just an arid intellectual point—it matters critically here. Why? Because exempting large, for-profit corporations from the contraception mandate would significantly burden female employees, along with all the wives and daughters covered by the policies of male employees. Thousands of women would lose all insurance coverage for contraception. That loss would be very real, and it would frustrate a central objective of Obamacare: namely to ensure that women have equal access to critical preventative care.

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The Establishment Clause allows the government to accommodate religious actors in many situations by removing burdens on religious belief. But in an important line of cases that has not received the attention it deserves, the Supreme Court has insisted that the Establishment Clause prohibits religious accommodations that impose burdens on third parties—which is exactly what is happening here. Exempting Hobby Lobby from the contraception mandate will seriously burden precisely those women who are its intended beneficiaries. Supreme Court case law on the Establishment Clause does not allow that result. In one decision, among many, Chief Justice Warren Burger quoted Judge Learned Hand, saying “[t]he First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.” That constitutional principle matters here in a particularly powerful way because Hobby Lobby is basing its claim on a federal statute, the Religious Freedom Restoration Act. But no statute, including one that purports to extend religious liberty, can be applied in a manner that conflicts with a provision of the Constitution.

Strangely, however, this last—crucial—reason to think that corporations do not enjoy religious freedom rights is almost entirely missing from the litigation and media coverage so far. Consequently, it was also entirely absent from the New York Times article. When the Supreme Court agreed Tuesday morning to hear Hobby Lobby, it made an important decision without having been briefed on one of the very strongest arguments against corporate exemptions. Professor Frederick Gedicks of Brigham Young University law school has called for the court to consider the Establishment Clause question, and lawyers have been trying to get that argument into court. But they face the difficulty that employees are (understandably) reluctant to come forward against their employers, even though their constitutional claim is strong and even though they have a lot to lose if the case goes the wrong way.

None of this means that people who own and manage corporations do not have meaningful rights to religious free exercise. In fact, one influential lower court found that the owners of a closely held corporation could challenge the contraception mandate as individuals. What it does mean, however, is that the rights of large, for-profit employers are necessarily limited. Civil rights laws, including this health care provision, draw the right line when they exempt religious organizations and small companies but not large corporations that could significantly burden the freedom and equality of their employees. We think that line makes sense, but whatever one thinks about it, the Establishment Clause prohibits large companies and the government from crossing it.

Micah Schwartzman is Edward F. Howrey Professor of Law at the University of Virginia School of Law.

Nelson Tebbe is a professor of law at Brooklyn Law School and visiting professor of law at Cornell Law School.

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