"Religious Liberty" in Court
Marc D. Stern
the world has changed! Forty-seven years ago, the U.S. Supreme Court was
asked to decide whether the State of Connecticut could prohibit pharmacists
from selling contraceptives to married couples. In a less than well-reasoned
opinion—but one that is socially beyond challenge—the Court held in
Griswold v. Connecticut that the state could not without invading
citizens’ privacy rights.
relatively short order, the Court also held that states could not bar
singles or minors from purchasing contraceptives, nor ban ads for them.
Today, courts and legislatures are deciding whether government may compel
those who on religious grounds object to providing contraceptives to others
to do so.
There are three categories of cases:
(1) pharmacists objecting to state regulations barring those who object to
dispensing contraceptives on religious grounds from referring customers to
under the Affordable Care Act (“ACA”) whether (and which) religious
institutions should be required to cover contraception in employer-funded
drug plans; and
whether private for-profit employers with religious objections to
contraception should be required to provide it.
latter two questions are triggered by the legislative mandate that health
insurance provide contraception coverage, as the federal government and many
states have done. The first question arises from state power to regulate the
practice of pharmacy.
Similar issues could arise with regard to abortion or assisted suicide in
states that permit it, but federal and state legislation offer broad
“conscience clause” protection in both cases. Congress and legislatures have
not, however, legislated specific religious liberty protection with respect
to clashes between conscience and access to contraception.
order to understand the legal issues involved, it is necessary to know
something about the general state of the law concerning the free exercise of
religion (“conscience”) and the right of access to contraception.
Turning to the latter first, the federal constitutional right to
contraception, the so-called “right to privacy,” is not an affirmative right
of access to contraceptive products or services. It is a negative right
against government interference with a person’s decision to obtain them.
However, Congress, state legislatures, and administrative bodies using their
general legislative or regulatory powers may require health insurers or
employers to provide such coverage. They may likewise (but probably need
not) include coverage in government-funded plans.
Although the Supreme Court once interpreted the Free Exercise Clause of the
First Amendment to require the government to offer compelling reasons for
any substantial burden on religious practice (Sherbert v. Verner,
1963), the Court has retreated from that position—which, it says, would
allow religious people to exempt themselves at will from most laws.
Beginning with Employment Division v. Smith (1990), the Court now
says that a law which is religiously neutral, generally applicable, and not
subject to individualized exceptions (e.g., a “good cause” shown exemption)
cannot be challenged on Free Exercise grounds. On the other hand, a law
that said killing animals is permissible except for purposes of religious
sacrifice is unconstitutional. (Church of the Lukumi Babalu Aye v. City
of Hialeah, )
Under this interpretation, a general mandate (“all employers must provide
contraceptive coverage”) would not violate the Free Exercise guarantee even
if applied to completely religious institutions such as houses of worship or
Congress did not accept the Court’s dilution of Free Exercise protection. In
1993, it adopted the Religious Freedom Restoration Act (1993) (“RFRA”),
which for purposes of federal laws and administrative activities reinstates
the older compelling interest standard whenever federal law action
substantially burdens religious belief or practice.
applies to neutral, generally applicable federal law. Congress has
occasionally exempted certain rules from RFRA, notably bans on female
genital mutilation. It has not made an exception for contraceptive services.
the heart of the new health care law is the requirement that employers
provide employees with affordable health insurance covering core services as
determined by the government. The Obama Administration included
contraceptive coverage among the core services, excepting only houses of
worship—technically, tax-exempt institutions devoted to spreading the faith,
and which employ and primarily serve people of the faith. (One could imagine
a church or seminary that did not meet these criteria, but the assumption
has been that all churches will be exempt.)
administration specifically declined to exclude religious social welfare
institutions such as hospitals from the scope of the requirement. Most do
not primarily serve members of the faith and are not staffed by members of
Obama Administration did not invent the distinction between the house of
worship and other religious institutions. It was copied from legislation
requiring California and New York employers to provide contraceptive
coverage. The highest courts of each state upheld that legislation against
various constitutional challenges.
Reaction to the administration’s mandate was predictably mixed.
Advocates for women’s reproductive choice and liberal Catholics, already
sharply critical of the church’s position on birth control, welcomed the
decision, emphasizing that religious institutions should not be free to
impose their religious views on others.
(Some of the rhetoric made it sound as if religious institutions were firing
people who used birth control, which, of course, is not the case.) The
institutional Catholic church as well as some evangelical Protestants
insisted that the administration was undermining religious liberty by
compelling them to act in violation of their religious tenets.
response, the administration proposed a further compromise, excusing
religiously affiliated institutions from “paying” for such insurance
coverage on the ground that insurance companies saved sufficient money from
prevented pregnancies that they could “afford” to provide coverage at their
proposal did not satisfy the Catholic bishops (though it was endorsed by
various orders of nuns). The bishops proceeded to launch a major campaign to
“defend” religious liberty.
Obama compromise also left unanswered questions about self-insuring
religious social welfare institutions and whether the compromise made
financial sense. The Administration called for a further round of comments
and delayed enforcement of the rule with respect to religious institutions
until August 2013.
Commercial enterprises enjoy no such harbor. Congress quickly considered,
but failed to pass, legislation that would have exempted all religious
objectors, including corporate ones.
classes of objectors—religious institutions and commercial enterprises—have
filed numerous challenges to the contraceptive mandate. The religious
institutions raise a variety of Free Exercise Clause and RFRA claims. For
RFRA claims, all that need be alleged is a substantial burden on religious
practice. Those claims are straightforward.
Constitutional claims are more complicated. They are basically of two
kinds: that the government cannot constitutionally distinguish between
different aspects of a religion’s sacred work; and that the healthcare law
is not a neutral law of general applicability.
latter argument is variously cast. In some cases, plaintiffs argue that
since the government can and has granted waivers from the core package of
covered services (say, because a particular coverage was too expensive for a
particular low-wage workplace), it cannot treat religious objections less
favorably than financial ones. In other cases, plaintiffs argue that since
existing plans (so-called “grandfathered plans”) need not provide
contraceptive coverage, the law is not generally applicable.
These claims can be met with a variety of answers either addressing the
claim of non-neutrality or asserting a compelling interest:
Since the goal of the act is to provide affordable health care, the waivers
are not exceptions to the general rule, but the general rule itself,
inasmuch as the act requires only affordable health care;
The grandfathering exception is not an exception but a reasonable
transformational feature of a massive reform;
The constitutionally protected status of access to contraception makes
availability of it to employees a compelling interest;
Without availability of contraception and the ability to control when they
become pregnant, female employees cannot achieve real equality in the
economy. (Indeed, one response to recent Missouri legislation allowing any
employer with religious objections to contraception coverage not to pay for
it is a lawsuit challenging the law as illicit sex discrimination); and
Protecting the religious rights of religious employers imposes faith on
for for-profit secular employers, it is open to debate whether they can
claim either statutory or constitutional protection for religious liberty.
This claim would have greater resonance if corporations did not have a
constitutional right to influence (buy?) elections. Courts have noted the
difficulty of the question but have done their best to avoid answering it.
Several courts so far have declined the invitation to enter this thicket
regarding not-for-profit religious groups on the ground that the suits are
not ripe for decision. The administration is, after all, reconsidering its
policy; no regulation is in place; no one knows what the final policy will
look like; and the administration has declared that it will not enforce the
rules against religiously affiliated institutions, at least until summer
these circumstances, courts have held—no doubt correctly—that the cases are
not ripe for decision, though one such case is currently on appeal.
such barriers exist for lawsuits brought by private companies—usually small
ones, with ownership held by a small number of family members. These suits,
brought under both RFRA and the First Amendment, are certainly ripe, as the
Act imposes—or shortly will—present duties on such employers.
federal district courts have issued temporary injunctions against
enforcement of the contraceptive mandate, in each case emphasizing the
difficulty of the question. A different district court dismissed the
complaint on the merits, finding that the small additional cost imposed no
burden on religious practice sufficient to meet the RFRA “substantial
burden” test, and that, as regards the Constitution, the requirement was a
neutral law of general applicability.
that latter case, the court reasoned that the employer himself was not being
required to use contraception. The “sin,” if any, was committed by the
employee, and that only if the employee chose to use contraception.
Subsidizing that possibility, the court thought, was too far removed from
the sin to be a substantial burden—a holding which, if affirmed, would also
prevent not-for-profit groups from invoking RFRA against the mandate.
is not plainly true as a matter of theology. It may be right as a matter of
law by analogy to the well-settled rule that taxpayers cannot object to the
uses to which tax funds are applied.
hard to predict the outcome of all this litigation. It will take years for
all the cases to be decided, and, of course, different cases may be decided
it is already possible to see that the clash over contraception presents in
sharp focus clashes between two conflicting world views: of individual
autonomy, private decision-making, and gender equality against the claims of
religious institutions and of sexuality as a matter of public moral concern.
see battles between good and evil. It is more accurate to see an agonizingly
painful clash of values widely held in American society.
years ago, there was much debate over whether pharmacists should be
permitted to refrain from filling prescriptions for contraceptives and
especially for so-called Plan B, which prevents implantation of a fertilized
egg and which some therefore consider a form of abortion.
one extreme case, a pharmacist ripped up a prescription, but most of the
debate was about the practice of referring patients to another pharmacist.
Some states explicitly sanctioned the practice, but several
others—Washington and Illinois among them—banned it by rule.
lower courts have so far enjoined both rules, on the ground that they were
not religiously neutral. In particular, a Washington federal district court
found that state law allowing pharmacists to not satisfy a prescription for
numerous reasons (little demand; drug did not fit the pharmacy’s marketing
niche, etc.) other than religion was a classic case of a non-neutral rule
that needed to be justified by a compelling interest. This court found the
arrangement failed the test, since as a practical matter all or near all
prescriptions would nevertheless be promptly filled.
Those opposing exemption describe the relevant rule differently, as one
requiring pharmacies to carry a representative sample of drugs and then
dispense what they carry to anyone presenting a valid prescription. Even if
the rule is non-neutral, it is justified by the state’s interest in seeing
to it that women have ready access to contraceptives.
Appellant’s briefing in the Washington state case is being completed as this
is written. A decision will come sometime in the next 18 months. Meanwhile,
the trial in the court of public opinion will continue.
Becket Fund has a website devoted to the litigation,
of aid to parochial schools make the same argument that proponents of
contraceptive coverage make—that if one is denied access to funding, one
cannot meaningfully exercise a right. Opponents of each position distinguish
between the right and a duty to subsidize.