For part 1 of this post, see https://beguineagain.com/2014/08/14/womb-with-a-view-redux-part-1/
(Correction: In part 1 of this post, I referred to “36 other substances / devices for contraception”. The correct number should be 14 other methods. The ACA contraception mandate covers 18, not 40, contraceptive methods (20 total, but 18 for women) approved by the FDA, 4 of which were at issue in the Hobby Lobby case.)
All that said, however, we must also acknowledge that by no means are all the problems with the Hobby Lobby ruling “pseudo”. Some are both significant and real, such as …
o The real (potential) problem of the case for Hobby Lobby being argued and decided on a statutory rather than constitutional basis
As paradoxical as it perhaps may sound at first, the fact that the Hobby Lobby case was argued and decided on the basis of a Federal statute – RFRA – instead of on a constitutional / First Amendment / “religion”-clauses basis could pose a problem. It could also be an advantage, depending upon where you stand on the “free exercise” issues to be decided. This potential problem – or advantage – arises from the fact that, since the RFRA law is a creature of Congress, it is subject to being adjusted, “nipped, tucked, and tweaked” in terms of RFRA’s applicability in subsequent legislation. This is a point that Eugene Volokh makes in his illuminating discussion of the statutory basis of RFRA in the section entitled “How RFRA May Make Religious Exemption Claims More Appealing to Courts” (boldface in original as italics):
If Congress dislikes an exemption that courts have recognized, it can pass a new statute rejecting that exemption. Congress can even block such exemptions proactively … As a result, exemptions recognized under RFRA, unlike exemptions recognized under the Free Exercise Clause in the Sherbert / Yoder [i.e., pre-1993, pre-RFRA] era, are at the mercy of the legislature. It’s possible, though, that the RFRA regime may sometimes prove to be more friendly to religious exemptions than the old constitutional exemption regime, precisely because it is statutory. A court may be reluctant to accept a close constitutional claim precisely because accepting it would permanently bind the legislature. … But under a RFRA regime, a judge may be more willing to decide close cases in a claimant’s favor, precisely because the decision is not final. “We think that granting a religious exemption won’t undermine any compelling government interest,” a court might say, “but if we’re mistaken, the legislature can easily correct us”.
In some ways, this adaptability to the will of a popularly elected branch of government – namely, the legislature, both Federal and State (for States with State-level RFRAs on the books) – is an obvious advantage, if for no other reason than that it takes some of the sting out of the so-called "counter-majoritarian dilemma". (This supposed dilemma arises when unelected judges rule against the manifest will of a majority of the People, as expressed through either referenda or popularly elected legislatures. This presupposes that the Nation should always be ruled by the majority, which is a false premise to start with, given, e.g., Article III of the Constitution and Marbury v. Madison But I digress ... ) But in arguing its case in opposition to the Hobby Lobby exemption before the Supreme Court, the Department of Health and Human Services (HHS) made a point that I think the majority skated over rather too lightly, and that deserves more consideration than the majority gave it. In the majority opinion of the Court, Justice Alito wrote:
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs … (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? … The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned” solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
But Justice Alito’s subtle “don’t-worry-be-happy” rhetorical sleight of hand cannot ultimately conceal the fact that he is discussing the very possibility vis a vis RFRA that Justice Antonin Scalia alluded to in Employment Division v. Smith in 1990: the possibility that granting a religious exemption "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." The force of the objection is not diminished by the fact that, post-RFRA, the issue would be decided in the (State or Federal) legislature instead of in courts. I said earlier that there should be little fear that, e.g., religious scruples could be cited to re-segregate lunch counters, apartment complexes, etc, and to countermand EEO legislation mandating gender neutrality in hiring, firing, and promotion. That is true as far as it goes. But not all issues on which religious objections can have a bearing are nearly as far down the slippery slope as racial integration and gender equality. Accordingly, in such cases, the fact that requests for religious exemptions would be debated within the context of a “mere” Federal statute instead of that of the universally binding First Amendment could well be a disadvantage. In fact, the possible exception of religiously grounded, legalized discrimination against LGBTQ people is a good case in point: if laws prohibiting invidious treatment of and discrimination against sexual-orientation minorities are subject to religiously based “tweaking” based on RFRA that Volokh described in his discussion, then there is cause for concern.
o The need for reciprocal accommodation on the part of religious groups
One of the things I like most about Eugene Volokh’s discussion and analysis of the Hobby Lobby / Mardel / Conestoga cluster of cases is the last chapter of Sebelius v. Hobby Lobby: Corporate Rights and Religious Liberties. That chapter is tellingly entitled “Mutual Accommodations”, and concerns the wisdom of religious groups accommodating themselves to the laws governing a complex, pluralistic society, as well as vice versa. Volokh’s point is that, in such a society, governed by a robust and long-standing constitutional culture, religious groups need to recognize that laws intended to govern everyone in such a society are – yes, to be sure – obligated to carve out concessions to the religious sensibilities of various groups, to the greatest extent possible consistent with the achievement of various “compelling governmental interest[s]” – but that, for the very same reason, religious groups incur a reciprocal obligation to undertake their own accommodations to the sensibilities and no-less-compelling interests of the government and the society in which they are embedded.
If you live in a religious pluralistic country … you have to accept that your government will do some things that you disagree with. Indeed, it will do some things that you think are evil. Your fellow citizens will do the same. Moreover, you will always have some degree of complicity with such evil, if you define complicity broadly. Most obviously, you will pay taxes. … They can be used to fund what you see as killing embryos through implantation-preventing contraceptives. They can be used to fund contraceptives, which you might think are against God’s plan. … If someone says, for religious reasons, “I refuse to perform abortions,” I sympathize. There are indeed already laws that let people opt out of direct participation in performing abortions. … But, to go to the other end of the spectrum, if someone says “I refuse, for religious reasons, to pay any taxes that might end up paying for abortions or morning-after pills,” that person has drawn the line of complicity at a level that puts him beyond feasible accommodation. If that’s his sincere religious belief, then I suppose he’ll have to comply with what he sees as God’s law. But secular law won’t, and needn’t, yield to those beliefs. His rigidity has put him outside the zone of accommodations that our legal system ought to provide.
Volokh’s discussion in this chapter, especially the part I cite above, touches on my main problem with the Hobby Lobby decision: the lack of a demand on the part of the legal system for the Hobby Lobby plaintiffs to back up their objection to the four types of contraceptive devices / substances with actual data. Not all religiously grounded petitions for exemptions are subject to such a requirement. If I petition for an exemption based on my belief that God does not want me to work on the Sabbath (however defined), it would not be appropriate to ask me for empirical evidence that such is the case. However, the Green family, et al., do base their suit on the allegation that the four types of contraception to which they object are abortifacients. In that case, data is critically relevant: are the drugs / devices capable of inducing, and are they designed and intended to induce, abortions? This is not a question of belief. This is a question of fact. It is like the question of whether the sky is blue. Either the sky is blue or it is not. Our "beliefs" are irrelevant.
Note – one more time – that this is a question of fact, not belief: do the four problematical contraceptives, as a matter of fact, result – and are they as a matter of fact intended to result – in abortion? That question can be answered “Yes” or “No” entirely without reference to issues of faith and theological doctrine or to the “ontological” status of the fetus (i.e., whether human or not; if so, when it becomes human; etc., etc.) Note, also, that the way the question is asked is critical. Intentions are critical. A pregnant woman can induce an abortion by fastening her car’s seat belt too tightly. Should car seat belts therefore be classified as “abortifacients”? Of course not, because that is not the intent: that is not, as a matter of fact, what seat belts are designed to do. Another example: in 2007 a 28-year-old woman and a mother of 3, from Rancho Cordova, CA, was found dead in her home by her mother hours after trying to win a Wii game console in a contest sponsored by a local radio station. She over-hydrated herself and died. Should the radio station's management be indicted on charges of wrongful death or manslaughter or negligence or depraved indifference or knowingly purveying harmful substances? Same question for bottlers of "boutique water." Of course not. Potential side effects do not count in such classifications, because anything – drug or device – can cause harmful side effects. In referring to the four problematical types of contraceptives, Justice Alito’s language is interesting (boldface added):
[In writing ACA,] Congress … authorized the Health Resources and Services Administration … to decide [which contraceptive drugs / devices would be required for insurance companies to cover under the terms of ACA]. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. ... Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. ... The Hahns and Conestoga … [seek] to enjoin application of ACA’s contraceptive man-date insofar as it requires them to provide health-insurance coverage for four FDA-approved contraceptives that may operate after the fertilization of an egg.
The three critical phrases I boldfaced, as well as the instances that I did not, all pertain to the four problematical contraceptives at issue in the Hobby Lobby case. In all cases, without exception, the descriptive locution is always phrased as “may have the effect” and “may operate”. It is safe to assume that the majority Justices, being superlatively trained attorneys, are meticulously careful in their use of language. If the four contraceptives at issue were intentionally designed with the purpose of being abortifacients, as the petitioners claim, then the word “may” would be absent. In that case, the decision would read “including the 4 that have the effect,” “four of those methods … have the effect,” “that operate after the fertilization of an egg,” etc. The conclusion is therefore no more warranted that those four contraceptives categorically are abortifacients than the conclusion that, because car seat belts may possibly result in abortions, that car seat belts categorically are abortifacients, or that water is a poison and that therefore the Federal government should not require cars to have seat belts and should ban the sale of, e.g., bottled water.
This is what I object to most about the Hobby Lobby decision: not that RFRA enjoins the Federal government to abridge “free exercise” rights only in pursuit of a “compelling … interest” and even then by “the least restrictive means”; not that RFRA might result in complex, down-in-the-weeds “tweaking” and “horse-trading” in legislatures about possible religious exemptions for various groups; etc., etc., etc. Rather what I object to was alluded to by Eugene Volokh’s last chapter: that supine, uncritical acquiescence on the part of the Court to data-driven misconceptions about the way things actually stand and the way things actually are as a matter of fact will act as a disincentive to religious groups to make concessions to the fact that they live, move, and have their being in a pluralistic society where not everyone agrees with them and where respect for others’ consciences is required. It is one thing to “tweak” the law with a religious exemption on a matter purely pertaining to faith. It is another thing altogether to “tweak” the law based on a shared lack of knowledge on matters of fact of some critical parameter that is at issue. To the extent that courts undertake to do the latter, then religious groups will have no reason to engage in mutual accommodation, even in those cases where the ambiguity of the available data -- in this case, as to whether the 4 contraceptives are as a matter of fact really abortifacients -- gives the groups ethical room to do so. The "free exercise" clause of the First Amendment makes it incumbent on courts to grant some degree of consideration to matters of sincere religious faith, but it obligates no one, least of all the courts, to grant any deference to misconceptions about matters of empirical fact. (Contemplate the following for a moment: suppose parents whose kids are in public school nevertheless object, on sincere religious grounds, to their kids being required to attend science classes where the kids are taught evolution and the Big Bang. The parents file suit against the school district, and the case is appealed all the way to the Supreme Court. Given the Hobby Lobby precedent set by the Court's deference to religious sensibilities on matters of fact, what would be the outcome?) The Greens' objection to those four contraceptives falls into the latter category, and therefore, absent an answer to the "abortifacient-or-not" question, merits no deference, either as a matter of fact or as a matter of law. Theological beliefs do not produce facts.
o The “double exemption” for Wheaton College
The final real problem I see with the Hobby Lobby decision is a problem that was gratuitously and altogether unnecessarily self-created by the Supreme Court when it subverted its own logic in Burwell v. Hobby Lobby by issuing the decision about Wheaton College and the ACA’s contraceptive mandate. In the Hobby Lobby decision, Justice Alito, writing for the majority and quoting the relevant Department of Health and Human Services (HHS) regulation, said:
HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodationfor nonprofit organizations with religious objections. … Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. … If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements … on the eligible organization, the group health plan, or plan participants or beneficiaries.”
The self-certification to which the majority refers sounds odd, even casuistical, until one considers the alternative: involving the Federal government in a decision that implicates the theology and morality of a religious institution – almost an engraved invitation to violate the classic “Lemon test” prohibiting “excessive entanglement” on the part of the government in religious affairs (cf. Lemon v. Kurtzman, 1973). The Supreme Court did well to steer well clear of this particular constitutional black hole. Rather, the problem the Court created was allowing Wheaton College to demur from even this very laissez faire approach to the Hobby Lobby accommodation, essentially granting Wheaton College a double exemption: exemption from the contraceptive mandate of ACA and an additional exemption from even the fig-leaf requirement of self-certification in the non-profit accommodation. By this decision, the Supreme Court essentially set the precedent of allowing Wheaton College – and other religious institutions in similar situations – an exemption within the exemption.
One could not ask for a more perfect, ideal, made-to-order, paradigmatic example of a situation in which Eugene Volokh’s advocacy of mutual accommodation makes lucid, crystalline, lapidary sense: a religious institution accommodating the secular justice system, on a purely ancillary, procedural matter, in fair exchange for the prior accommodation the latter granted the former. Wheaton College alleged that even submitting the paperwork required to self-certify would have rendered the College complicit in the purveying of forms of contraception it regards as tantamount to murder. Basically, what the College is requesting is carte blanche cafeteria-like permission to comply with and to disobey, purely according to its own lights, particular provisions of the ACA. The College is, in essence, asserting that filling out and submitting a particular Government form would incur the Wrath of God on the Day of Judgment, with consequences that include potential eternal damnation in the Lake of Fire. Fill out a simple government form and you burn for an infinite and ageless Eternity, per omnia saecula saeculorum, en aionos ton aionon: this is the “butterfly effect” with a vengeance!
In his discussion of mutual accommodation, Eugene Volokh remarked
[I]f someone says “I refuse, for religious reasons, to pay any taxes that might end up paying for abortions or morning-after pills,” that person has drawn the line of complicity at a level that puts him beyond feasible accommodation. If that’s his sincere religious belief, then I suppose he’ll have to comply with what he sees as God’s law. But secular law won’t, and needn’t, yield to those beliefs.
Unfortunately, that is precisely what "secular law" did. That the Court did not grow an institutional spine stiff enough to make some cognate version of Volokh’s mutual-accommodation argument, and insist on compliance with even the watered-down requirement to self-certify, makes one wonder under what circumstances the Court would insist that its decisions, while bending over backwards to accommodate all reasonable religious objections, are nevertheless backed up by the full majesty and authority of the US Constitution. Suppose the case had been, not about contraception, but had been a rewind-and-replay of the case of Bob Jones University and racial integration. As far as I know, Wheaton College has no religious objection to racial integration, interracial dating, etc., but suppose it did – and that the College had made the same religiously based argument it made about the ACA employer mandate and the HHS contraception list. I suppose one could argue that, however repugnant such a policy would be from a moral standpoint, as long as a religious institution is truly, completely, and totally private, not accepting any Government support / benefits whatsoever, that such a policy would be constitutionally permissible. But it is enough to make one wonder …
In summary, my attitude toward the Supreme Court’s ruling in Hobby Lobby is one of uneasy concern, but not – yet – alarm. If we restrict our attention to just the decision itself, there is much to admire in the Court’s meticulous solicitude for the religious conscience of people who entertain sincere moral, religious, and theological objections to the four types of contraception that prompted the suit. The Hobby Lobby decision, in fact, decisively refutes the constant drumbeat from conservative Christians to the effect that insufficient account is being taken by the Government of the religious and moral principles of religious communities, specifically Christian communities, in the laws that are passed and in the court decisions that are rendered. Not only in the Hobby Lobby decision itself, but also in the antecedent crafting of the ACA, especially with respect to the employer mandate, one can almost hear the Government’s spine crackling as it bends over backward to accommodate the religious, theological, and ethical scruples of the organizations that will be subject to the employer mandate, specifically with regard to contraception. One would think it therefore altogether reasonable to expect some type of accommodation from the religious organizations in return, on matters that are, as St. Augustine would have said, adiaphora, i.e., matters of debate that are ambiguous, and therefore inessential, on which honorable people can disagree honorably. But instead, the response so far has been like that of Wheaton College: demand even more accommodation from the Government, to the point that the Government’s spine not only crackles – but positively breaks. That the Supreme Court yielded to such bullying on the part of Wheaton College and allowed its spine to break – even on so modest a matter as submitting a piece of paper to the Government -- does not augur well for the future of the Court’s interpretation of the “free exercise” clause. We are seeing the tail wag the dog. The Hobby Lobby decision itself was eminently reasonable and, even on matters where disagreement is possible, quite arguable. But the tail of the Wheaton College decision wags the constitutional dog of Hobby Lobby – and in the process tilts the Nation a fraction of a millimeter toward theocracy. That is a fraction of a millimeter too far.
James R. Cowles