Over the past several years, the fight for religious exemptions has been framed as a struggle between religious freedom on the one hand and LGBT and reproductive rights on the other. Largely ignored is the fact that as religious exemptions become broader, they will likely conflict with the religious beliefs and practices of third parties. An amicus brief for the upcoming case Zubik v. Burwell, submitted by a coalition of progressive Catholic organizations including Catholics for Choice, brings this problem to light. The brief raises interesting and important questions, as well as concerns about the appropriate scope of religious exemptions. It forces those of us on the left to think critically about whether appealing to progressive religious liberty claims may be a more effective way to combat conservatives’ push for ever-broader exemptions, or whether this simply adds fuel to the exemption fire.
The Zubik case involves a claim by religious nonprofits that, under the Religious Freedom Restoration Act (RFRA), they are entitled to total exemptions from the requirement of the Affordable Care Act (ACA) that they provide their employees with health insurance covering cost-free contraception. Under RFRA, the government may not impose a substantial burden on religious exercise unless this burden is the least restrictive means of furthering a compelling government interest. In Hobby Lobby, the Supreme Court held that certain for-profit companies opposed to paying for contraceptives were entitled to exemptions from the ACA mandate, as the government had already established a less restrictive way to guarantee cost-free contraceptive coverage to employees. Under this arrangement, religious corporations could submit a form to their insurance company or the government stating their refusal to pay for contraception. Their insurance provider or a third party administrator would then be required to pay for coverage. Religious nonprofits now argue in Zubik that even this accommodation—which requires them only to fill out a form and then work with an insurance plan that covers contraception— violates their religious freedom. They are demanding a total exemption, which would result in their employees’ having no access to cost-free contraception through their insurance plan.
Academic and media articles, as well as several amicus briefs opposing the religious exemption, have argued that neither the Establishment Clause nor RFRA permit the government to sanction religious accommodations that would harm third-parties. This is a sound reading of Supreme Court precedent, including Cutter v. Wilkinson and Estate of Thornton v. Caldor. The majority of commentators, however, have focused on the potential harms that a total accommodation would inflict on employees’ right to contraception. The creative Catholics for Choice brief additionally highlights a potential harm to employees’ religious rights.
The amicus brief argues that a total exemption would harm employees’ “religious liberty interest in making their own decisions about contraceptive use.” At first glance, this argument makes sense: a company should not be able to force its employees to adhere to its own religious code. However in order to make a strong claim that employees’ religious exercise would be burdened by a total exemption, the brief would have to argue that at least some employees’ faith requires not only that they have access to contraception, but that they have access to cost-free contraception through their employer’s insurance plan. Otherwise, granting employers an exemption would not create a direct conflict, but would simply make employees’ exercise of religion more difficult and costly. While the Supreme Court is highly deferential to religious burden claims, it has in the past been wary of striking down government actions that do not prohibit religious practice, but simply make it more expensive. Eliminating contraceptive coverage from employee health plans absolutely harms women’s health and equality. It’s not clear, however, that the Court would accept a claim that employees’ religious faith mandates this coverage, nor do amici explicitly posit any such belief.
On the other hand, the Supreme Court appeared to accept an equally exacting religious liberty claim in Hobby Lobby. In that case, the plaintiffs argued that their religious faith both prohibited them from offering health insurance that covered contraception and from not offering any insurance—in other words, the only moral option would be to provide incomplete insurance coverage. This religious belief appeared suspiciously crafted to evade the ACA mandate, but the court nevertheless seemed to accept it at face value. The Court found that the ACA mandate burdened companies’ religious exercise even though the punishment for not providing contraception was only a fine— and thus it did not prohibit but merely made the employers’ exercise of religion more expensive. In fact, companies’ may actually have saved money by declining to provide health insurance, and paying a fine estimated to be less than the cost of insurance. Considering the strong deference given to the highly specific religious liberty claim in Hobby Lobby, it’s therefore possible that a court would accept amici’s argument that a total exemption from the mandate would burden employees’ religious practice.
A second challenge of amici’s argument is that the Court in general rejects religious freedom claims that seek to restrict the actions of a third party, and rightfully so. By arguing that employees’ have a religious right to contraceptive coverage through an employer plan, amici essentially argue that their religion gets to dictate the actions of their employer. This is problematic, for the same reason the nonprofits’ requested exemption itself is problematic—one’s religious beliefs should not be used to control the actions of a third party. The nonprofit plaintiffs in Zubik are attempting to use RFRA to forbid their insurance companies and third party administrators from providing contraception. While I agree with amici that this request should fail, basing such a decision on employees’ religious rather than reproductive rights could set a risky precedent that allows for ever-broader religious exemption claims by both institutions and individuals. Imagine, for example, that a Quaker nonprofit requested an exemption from an open carry law—should an employee’s religious belief in the choice of whether or not to bear arms trump the requested exemption? Does an employee have a religious right to be permitted to bring a gun to work? Should the Quaker institution have never received the exemption allowing it to restrict its employees’ rights in the first instance? Any request—whether by employer or employee—to use religion against a third party should be treated with suspicion.
The amici may counter this critique by arguing that they do not demand a religious right to contraceptives per se, but merely a religious right not to be affected by a religious exemption with which they disagree on religious grounds. Since nearly every accommodation may conflict with another person’s religious beliefs, however, this argument calls into question the fairness of granting accommodations at all. This is especially true considering the reality that a more resourced employer or corporation will have a far greater ability to request religious exemptions from the government, and employees may not always have the ability to ensure that their religious beliefs are taken into consideration.
Finally, amici also argue that an employer’s denial of benefits “degrades the dignitary free exercise rights of employees,” and granting an exemption would involve the government in “demeaning those employees’ exercise of religious… freedom.” This is a compelling claim— religious practitioners certainly have a dignitary interest in ensuring that their beliefs and faiths are not singled out for ill-treatment. Employees also have a dignitary interest in access to contraception, which allows them to protect their health and plan their reproductive lives. It’s not clear from the brief, however, how far the concept of a “dignitary free exercise” right should extend. It would be entirely unworkable to force the government to resolve competing “dignitary free exercise” claims for incompatible religious beliefs. Could a Christian military officer who has a religious opposition to hijabs argue that, by accommodating a Muslim soldier, the government imposes dignitary harm on her religious exercise? Could a Jew argue that his religious dignity is harmed by a religious exemption allowing Jews for Jesus to proselytize on public property? These are complicated questions, and the brief’s call to respect dignitary free exercise rights begs the question of whether the government should be in the business of sanctioning any religious exemptions, or whether this by definition creates a hierarchy of beliefs.
Despite some limitations in the amici’s brief, it has nevertheless brought to light the ways in which granting broad religious accommodations, especially to large corporations, will pose complex conflicts between various religious actors. The potential for clashes of faith is seemingly endless. Who should prevail when a Catholic hospital that has banned abortion employs a Catholic doctor whose religious faith compels her to place a mother’s health or life over that of a fetus? Which exemption wins out when a conservative Christian social services organization opposed to LGBT rights hires a Lutheran counselor whose religion demands tolerance? Where does one party’s religious liberty end and another’s begin? While a concern for employees’ access to reproductive healthcare will hopefully prevail in Zubik, amici’s brief should pressure the Court to take a hard look at the consequences of broad religious exemptions, and the ways in which they may harm the religious liberty of others.