Setting the Establishment Clause Against Religious Liberty

Frederick Gedicks, who holds the Guy Anderson Chair at Brigham Young University Law School, recently argued in the Washington Post that to permit Hobby Lobby and Conestoga Wood, the two companies challenging the contraception mandate on religious liberty grounds, to receive an exemption from its strictures would be a violation of the Establishment Clause. Gedicks argues that granting the exemption would, in effect, make employees of these companies pay the costs of their employers practicing their religion:

These cases indeed pose a grave threat to religious liberty, but not to that of the owners of these businesses. Exempting ordinary, nonreligious, profit-seeking businesses from a general law because of the religious beliefs of their owners would be extraordinary, especially when doing so would shift the costs of observing those beliefs to those of other faiths or no faith. The threat to religious liberty, then, comes from the prospect that the court might permit a for-profit business to impose the costs of its owners’ anti-contraception beliefs on employees who do not share them — by forcing employees to pay hundreds of dollars or more out of pocket each year for what should be covered under the law.

HobbyTo this we might say, my, my administrative state how you have grown and given cause for your friends to twist essential rights in your service. So if a religious liberty exemption requires cost-shifting in the manner of employees having to purchase—let’s be clear for Hobby Lobby and Conestoga Wood, the objection is to emergency contraceptives like Plan B, Ella, and also IUDs, and not the pill—their own emergency contraceptives, then we have an impermissible establishment of religion. As Eugene Volokh has argued, were the exemption to be granted the employees of Hobby Lobby or Conestoga Wood would return to the status quo before the mandate came down and one that many employees of companies exempt from Obamacare for various reasons will stay in. That is, if they want emergency contraceptives, well, then, they’ll pay for them with their salaries. I know, I know, the voices of Humanitarianism cry out against such reasoning.

Wait a minute, though. Marc DeGirolami’s response to this argument, as made by Nelson Tebbe and Micah Schwartzman, notes that every religious exemption cost-shifts in some way. Isn’t that the deal? What kind of religious exemptions would be left under such reasoning? Gedicks assures us that such exemptions as parents not wanting to send their children to public schools so that they can be home-schooled or sent to private religious schools would be permissible under his reasoning. Boy, that’s a relief, I mean, for a minute there. Moreover, does RFRA remain good law, or RLUIPA under the regime Gedicks et al. want to construct?

After all, these statutes require religious exemptions when (1) a law places a substantial burden on an individual’s religious beliefs, (2) the law is not crafted in the least restrictive means available, and (3) the government cannot demonstrate a compelling state interest in favor of the law. In short, cost-shifting is baked-in, but in that process the statute contemplates the type of balancing between religious liberty and secular interests that the Gedicks gang points to, even if they’ve rigged the scales so far in the secularist direction that the analysis is over before its begun. DeGirolami notes that the reason why these arguments haven’t been made in government briefs supporting the mandate is because

RFRA incorporates certain limits to accommodation. That is, it would be a very rare RFRA (or RLUIPA) accommodation indeed which was constitutionally problematic under Thornton, because all RFRA (and RLUIPA) accommodations need to satisfy the substantial burden, compelling interest, least-restrictive-means threshold. The law at issue in Thornton, according to the Court required an accommodation “no matter what burden or inconvenience this imposes” on third parties. But the standard for RFRA accommodations is not, “you must grant the accommodation no matter what burden or inconvenience this imposes.” Accommodations must pass the government compelling interest threshold. If they do, they seem very much not to be violations of the Establishment Clause rule laid out in Thornton. In fact, many of the arguments about third party harms that T&S [Nelson Tebbe and Micah Schwartzman] make have already been briefed by mandate advocates as part of the RFRA calculus. So they haven’t been ignored. They just haven’t been analyzed under the Thornton Establishment Clause framework, because Congress already saw to that in the statutes.

The Gedicks’ argument primarily relies on one case, Estate of Thornton v. Caldor, for their claim, which involved a law that exempted employees from work on their Sabbath day. A Presbyterian sued his former employer for firing him because he refused to work on Sunday. In holding the statute in violation of the Establishment Clause, the Court noted its “unyielding weighting in favor of Sabbath observers.” The holding found that no balancing process was present in the law between the inevitable conflicting interests of the employers and religious employees. But RFRA contemplates the type of interests-weighing the Court found absent in Thornton.

While stating forthrightly that this is an argument without a huckleberry, DeGirolami, with charity, takes the gang up on its proposed argument that the mandate should be upheld on Establishment Clause grounds, apart from feeding it through RFRA. He concludes that Thornton’s context, the “unyielding weighting” the Court cited, precludes it from being decisive in the Hobby Lobby and Conestoga cases for reasons previously stated, i.e., the specific objection to the contraceptive products made by Hobby Lobby makes for a narrow burden on employees requiring only that they pony up for their goods.

Apart from DeGirolami’s impressive dismantling of the argument here, maybe there is something more fundamentally important—the need for a statement of core constitutional morality. At the heart of all this might be the claim made by Tebbe and Schwartzman to the effect:

At root, the constitutional conviction is that it is unfair and unconstitutional for the government to impose any substantial costs of a religious exemption on a focused and identifiable class of third parties.

So, finally, we get to it. I think what’s really going on, indeed, you have to work hard to ignore it, is that religious liberty is being relegated to a backwater of constitutional protections. The Establishment Clause has never been read in such stark terms as is proposed above. But that raises the basic question I want to address, that is, what’s true about the First Amendment religion clauses? They clearly contemplate that religion is a good and is favored by the constitutional regime, as amended. So why stack the deck against them or set them against one another?

Richard Reinsch

Richard Reinsch is the editor of Law and Liberty.

About the Author

Recent Popular Posts

Related Posts


  1. nobody.really says

    1. There’s no free lunch. So the question arises, does the Free Exercise clause justify taxing Mr. X to subsidize the religious practices of Mr. Y?

    Perhaps so. Analogizing to free speech, arguably racist speech burdens ethnic minorities, yet courts generally don’t engage in a balancing test. In effect, ethnic minorities are taxed to subsidize the free speech rights of racists. Presumably this reflects a judgment that the social benefits of free speech outweigh its burdens, combined with a judgment that the burdens of providing a social means for compensating victims of free speech outweigh the benefits. Alternatively, it may reflect the idea that the people in a position to vote for the adoption of the 1st Amendment anticipated that they would be net beneficiaries of its policies, and did not find it in their self-interest to focus on those who might be harmed.

  2. nobody.really says

    2. I tend to regard “working on the Sabbath” cases as a useful analogy. My right to exercise my religion grants me the power to impose reasonable burdens on a private third party – my employer – to make reasonable accommodation. This may involve authorizing me to find a replacement for the work that needs to get done on the Sabbath. Or if I find it repugnant to my faith to ask others to work on the Sabbath, reasonable accommodation my involve imposing on my employer the burden of soliciting others to work the weekend shift.

    But the fact that I object to work occurring on the Sabbath does not give me unlimited power over my employer. In particular, it does not give me the power to object to my employer retaining willing people to work on the Sabbath.

    The owners of Hobby Lobby do not merely object to paying for contraceptives for their own use, but to paying for contraceptives that third parties might use. This looks a lot like Henry David Thoreau refusing to pay taxes because he contentiously objected to slavery and war. He was free to object – from prison.

  3. nobody.really says

    3. Having read Reinsch’s essay, I have to suspect that I have completely misunderstood the purpose of the ACA – or he has.

    As I understand it, the US pays more for health care than any other nation, yet does not derive commensurate health benefits. Moreover, health costs are widely socialized through the insurance market, government emergency room mandates, and government-provided health insurance, yet the price mechanism sends inefficient signals. (E.g., uninsured people seeking routine care from emergency rooms, etc.) In recognition of these dynamics, the ACA is intended to make this socialized system a little more efficient and productive.

    In particular, the cost of unwanted pregnancies is large and socialized. The ACA seeks to manage these costs by providing birth control at no incremental cost, on the theory that the cost of birth control is less than the cost of unwanted pregnancies.

    Given this goal, I’m puzzled by Reinsch’s suggestion that we could resolve the Hobby Lobby conflict by simply imposing the incremental cost of contraceptives on employees. How, exactly, would this achieve the law’s goals?

  4. nobody.really says

    4. How does government justify the magnitude of the penalty for non-compliance with the ACA – and, in particular, can government demonstrate that these penalties are part of a regulatory scheme that is “the least restrictive means available” to achieve its compelling state interest?

    What sanction should Hobby Lobby bear if it fails to comply with the ACA? Arguably it should bear the least restrictive (i.e., smallest) sanction consistent with the government’s compelling interest. If government has an interest in avoiding the socialized costs arising from unwanted pregnancies, Hobby Lobby could fulfill its religious objectives while also fulfilling to goals of the ACA by paying a penalty/fee/tax equal to the estimated socialized cost of the number of unwanted pregnancies that will result from Hobby Lobby’s non-compliance.

    This would be a fascinating, and highly controversial, calculation. Because the average person creates more than he consumes, economist Steven Landsburg argues that the contraceptive policy may in fact impose social costs, not benefits; thus, maybe Hobby Lobby should earn a refund! On the other hand, economist Steven Dubner has published a study that unwanted pregnancies are likely to result in less social gain than wanted pregnancies.

    As a side question, who should bear the burden of generating such an estimate? Government can’t be expected to publish a menu of penalties reflecting the incremental cost of every possible religious objection someone might raise. (“Refusing to pay for blood transfusions: $600/employee/yr; Christian Scientists Special: $10,000/employee/yr;” etc.) This suggests that a party raising an exemption should have to bear the burden of generating an estimate.

    But alternatively, maybe when Hobby Lobby demonstrates religious burden, this should suffice to cause the burden to shift to government to justify its proposed sanction for non-compliance. This might be more efficient, as the feds would eventually develop some measure of in-house expertise in creating these estimates.

    • gabe says

      “This might be more efficient, as the feds would eventually develop some measure of in-house expertise in creating these estimates”

      Once again you come up with a statist solution. Really, the government will soon develop expertise – gee, isn’t that how we got into this quandary in the first place? – government experts designing a healthcare system.
      No thanks, I will pass on another dose of guvmnt expertise.

      • nobody.really says

        Hey, fine by me. If you think private parties should bear the burden of rebutting the presumption that the ACA-mandated penalties are appropriate, rather than putting that burden on government, I won’t try to dissuade you.

  5. z9z99 says

    The quote from Professor Gedicks reflects a postion that is poorly reasoned and ineptly stated. To try and unravel all of the convolutions, invalid assumptions, logical fallacies and generally unpersuasive gobbledygook would take much more space than the postion deserves. The average person should have little trouble seeing through the bluster. To take only one of the mildest examples, “…a grave threat to religious liberty…,” the adjective is itself fodder for parody. More to the point though, it is inobvious how having anyone pay for thier own contraceptives threatens anyone’s religious liberty. Are people obligated to convert to Catholicism if the governement does not force others to pay for their own prophylactics? Must they renounce their faith to get IUDs? What will become of Unitarianism if Hobby Lobby doesn’t have to subsidize Norplant?

    Professor Gedicks either misunderstands or misrepresents the concept of burden on religion. The burden that he speaks of is not a burden on religious freedom, it is a shared burden of those who have no objection to birth control to pay for others who think the same way. It is a significantly milder burden on the general public, religious or otherwise, than, for example, that resulting from conscientious objection in times of war, or the additional medical expenses that may be result from Jehovah’s Witnesses refusing blood products.

    If there is an argument that exempting Hobby Lobby from the contraceptive mandate is bad policy, the claim that it is a “grave threat” to religious freedom isn’t it.

  6. Ron Johnson says

    I find it interesting that everyone uses policy arguments that inherently favor a liberal outcome because you are arguing with Progressive assumptions about the nature of our government and its relationship with the citizens. What if we just said that the owner has a right to practice his religion and as the owner he gets to decide what that means in terms of the business he owns? If the employees don’t like it, they should strike another bargain with a different employer; you don’t have a right to your job.

    • nobody.really says

      “I find it interesting that everyone uses policy arguments that inherently favor a liberal outcome….”

      I don’t know how you reach that conclusion. I compare Hobby Lobby’s refusal to comply with a law that would involve paying for things it opposes to Henry David Thoreau refusing to pay taxes because he contentiously objected to slavery and war. Thoreau was presumably favoring a liberal outcome – and the law simply did not, does not, and should not support him.

      Ok, here’s a libertarian quandary: What do you think of using vouchers for schools? Specifically, should members of the public be able to refuse to pay money that will finance vouchers if those vouchers might be used to send a kid to a religious school that some members of the public disapprove of? If you support Hobby Lobby’s right to veto providing funds for things it disapproves of, shouldn’t everyone get to exercise the same veto – at least where the funds will flow via private choice to private entities (schools, insurers, contraceptive manufacturers, etc.)?

      “What if we just said that the owner has a right to practice his religion and as the owner he gets to decide what that means in terms of the business he owns? If the employees don’t like it, they should strike another bargain with a different employer; you don’t have a right to your job.”

      As I noted above, the issue isn’t about the EMPLOYEE’s interest in receiving contraceptives at no cost. It’s about SOCIETY’S interest in reducing the number of unwanted pregnancies. Hobby Lobby is asserting an autonomy right at the expense of SOCIETY’S interests.

  7. Ron Johnson says

    “As I noted above, the issue isn’t about the EMPLOYEE’s interest in receiving contraceptives at no cost. It’s about SOCIETY’S interest in reducing the number of unwanted pregnancies. Hobby Lobby is asserting an autonomy right at the expense of SOCIETY’S interests.”

    Thank you for making my point.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>