Originally published in Balkinization on March 26th, 2014. Cross-posted on the Gender & Sexuality Law Blog on March 26th, 2014.
Yesterday the Supreme Court heard arguments in the consolidated cases of Hobby Lobby and Conestoga Wood. With the publication of the full argument transcript online, it became clear that even the experienced lawyers arguing these cases – along with the Supreme Court Justices themselves – were struggling to understand how to think about the relationship between religious accommodations and third party rights. In this context, that means the impacts that accommodations granted to religious employers would have on their female employees who would otherwise have access to contraception without cost-sharing under the Affordable Care Act’s contraceptive coverage requirement (and indirectly on their partners and children).
This came as no surprise to me. In When Free Exercise Is A Burden: Protecting “Third Parties” In Religious Accommodation Law, a paper I authored that is shortly forthcoming in the Drake Law Review, I argue that neither scholars nor courts have thus far provided a satisfying account of how to balance free exercise rights against the impact of those rights on “third parties.” In the paper I provide a thorough analysis of the existing case law on this issue and propose both a novel framework for balancing such rights as well as insight into how to better utilize the existing constitutional and statutory doctrine toward this end.
In this short post, however, I simply want to draw attention to one particularly overlooked element of the contraceptive coverage requirement that can only be understood in relation to the “third parties” (female employees) in this case. The arguments yesterday focused entirely on the practical benefit of the contraceptive coverage requirement, and analyzed everything – from the compelling interest the government advanced to the effect of already-existing exemptions – in terms of the tangible access or lack of access to contraception for the women affected. But law has more than practical impacts – it has important expressive impacts that are explicitly meant to, and do, shape social norms and priorities. In my paper I argue that the contraceptive coverage requirement has an enormously important expressive element – it signifies a social and political commitment to women’s social and economic equality, and symbolizes an acceptance of social and shared responsibility for gender equality. The importance of contraception to women’s equality has been recognized by the Supreme Court, and is featured prominently in the Government’s briefing on its compelling interest in the law. That equality is impossible to achieve without access to contraception. In that light, allowing religious accommodations without ensuring seamless and no-cost contraceptive access for the employees of objectors would be inflicting a serious expressive and dignitary harm.
Now compare that understanding to this exchange on pages 37-38 of the transcript. It comes in the midst of a dialogue between Clement, arguing for the objecting plaintiffs, and Justice Kagan during yesterday’s argument, in which Clement distinguishes between the effect of race discrimination on a prospective employee and the effect of religious exemptions on women seeking contraception:
Now, each of those has a burden on third parties, but I would respectfully suggest they’re different. In the case of the employee who’s been subject to racial discrimination, even if they can get another job, that racial discrimination is a unique injury to them that you can’t remedy unless you tell the employer, don’t discriminate on the basis of race. . . . Here . . . all we’re really talking about is who’s going to pay for a subsidy that the government prefers. This is not about access to the contraception. It’s about who’s going to pay for the government’s preferred subsidy.
Clement’s description of what’s at stake is as minimal as can be: it’s just who is going to pay for contraception. It’s just a matter of money, with no expressive or dignitary implications. What is fascinating about this set-up is that Clement specifically contrasts this case to a race discrimination case, in which he happily admits that an employee discriminated against on the basis of race would have a recognizable harm apart from not getting the job. What kind of harm could that be? Obviously it’s a dignitary harm, a “unique injury” that exists “even if they can get another job.” Contraception, on the other hand, is positioned as simply a consumer good in the market, with absolutely no greater purpose or significance. (Which is ironic, of course, since part of his argument is that his clients view it as a sin.)
This focus on expressive norms and purposes is not just theory-talk. It has direct implications for the way we understand the details of the doctrinal standards as well. In the second half of the argument the conservative justices hammered General Verrilli, arguing for the Government, on how the Government’s interest in the contraception coverage requirement could be compelling when there were allegedly various other exemptions in the law, including for companies with fewer than 50 employees, religious organizations, and grandfathered plans. Verrilli did his best to defend the exemptions, noting that (1) companies with fewer than 50 employees are exempted from providing all health insurance but must cover contraception if they choose to offer health insurance, (2) religious organizations are exempted if they are houses of worship but are only offered an accommodation that ensures access if they are religiously-affiliated nonprofits, and (3) that the grandfathered plans will decrease over the next several years until very few, if any, remain.
The conservative justices were particularly obsessed with the grandfathered plans, and Verrilli had a bit of a difficult time explaining why the practical impact of leaving millions of women without contraceptive access during the intervening years did not undermine the Government’s compelling interest. Embracing the expressive import of the contraception coverage requirement, however, would have cast the exemptions in an entirely different light. The expressive message of exempting small businesses from health care coverage requirements generally is far different than if contraceptive coverage was singled out from those policies. Similarly, the exception for grandfathered plans reads, expressively-speaking, as an administrative transition matter affecting all preventative health care coverage, along with other of the law’s requirements, not as a judgment about the importance of contraception. The religiously-affiliated organizations, meanwhile, are subject to an accommodation that ensures seamless coverage for women in their employ; it is true that the lack of an adequate enforcement mechanism sends a troubling expressive message about the importance of this right, but the core signal of the accommodation is to affirm the Government’s commitment to contraceptive access, not to undermine it.
In other words, understanding the expressive impact of the law reframes the question of the baseline, helping us understand the compelling interest and narrow tailoring tests in a deeper, more coherent way. Such a perspective also has implications for the First Amendment analysis when it comes to whether a law is neutral or generally applicable, but like the Court I leave those questions for another day.
Kara Loewentheil is a Research Fellow at Columbia Law School and the Director of the Public Rights / Private Conscience Project in the Center for Gender and Sexuality Law.