How Contraception Court Challenge Hurts Religious Freedom

(Photo: AP/Pablo Martinez Monsivais)

A demonstrator holds a sign in front of the Supreme Court on June 30, 2014.

Abortion and contraception opponents have sued to block the Affordable Care Act’s contraception mandate on the grounds that it violates their freedom of religion, but the challenge now pending before the Supreme Court actually undermines religious liberty, argues University of Virginia law professor Douglas Laycock in a recent amicus brief before the court.

In pointed language, Laycock calls the religious nonprofits’ arguments a “mortal threat” to the future of religious freedom. A win by the plaintiffs, he writes, “would lead to absurd results that would discredit” the Religious Freedom Restoration Act (RFRA) “and the cause of religious liberty.” It could lead to, he argues, the end of religious exemptions if an overbroad ruling makes it impossible for legislators and government agencies to carve out reasonable ones.

Laycock’s brief is significant because he has long been seen as one of the staunchest and most thoughtful advocates for religious exemptions from state and federal mandates, including, recently, for religious objectors to same-sex marriage. He has written that the Supreme Court’s 2014 decision in Hobby Lobby v. Burwell—in which the Court ruled that the contraception mandate violated the religious freedom rights of a closely held corporation—was correctly decided. He had authored an amicus brief in that case in support of Hobby Lobby’s position. But the nonprofit plaintiffs have a more difficult case to prove before the high court than the for-profit companies did.

Laycock wrote the new amicus brief on behalf of the Baptist Joint Committee for Religious Liberty, one of the organizations weighing in on the reach of RFRA in Zubik v. Burwell, the group of cases challenging the health-care law, which the Supreme Court will hear next month. The Court has consolidated seven cases brought under RFRA by a cluster of religious nonprofits that includes the Archdiocese of Washington, the anti-abortion group Priests for Life, several evangelical universities, and the order of nuns known as the Little Sisters of the Poor.

Federal regulators devised a system to permit religious objectors to opt out of providing and paying for the contraception coverage themselves. But the plaintiffs claim that this accommodation allowing them to notify their insurance carriers of their religious objections, triggering the carrier to provide coverage to the nonprofits’ employees at no cost to the employer, still violates their religious freedom. (Only one court of appeals, the Eighth Circuit, ruled in their favor. Seven others sided with the government.)

The nonprofit cases are the final chapter in a protracted battle over the breadth of religious exemptions to the contraception coverage requirement that dates back to the health-care law’s enactment five years ago. When the Department of Health and Human Services first issued the contraception coverage regulations in 2011, it exempted churches and their “integrated auxiliaries.” But conservative activists sought also to exempt religious nonprofits, arguing that the law required these religiously affiliated organizations to be treated the same as houses of worship.

Instead, HHS crafted an “accommodation” for religious nonprofits, enabling them to notify their insurance carriers to arrange and pay for the coverage, rather than exempting them entirely. The religious nonprofits claim that filling out the paperwork to notify their insurance companies imposes a substantial burden on their sincerely held religious beliefs, because it still involves them in arranging for the coverage.

The cases have become prime fodder in the culture wars, and a rallying point for religious conservatives up in arms over alleged infringements on religious liberty. In campaigning for the Republican presidential nomination, Texas Senator Ted Cruz has pledged to end what he calls the Obama administration’s efforts “to impose millions of dollars in fines against the Sisters, under Obamacare, in order to force the Sisters to pay for abortion-inducing drugs and others.”

Laycock’s brief is remarkable because of the way it turns on its head the plaintiffs’ argument that the nonprofits are victims of an overreaching government. In fact, Laycock argues, “religious liberty can be endangered by exaggerated claims and overreaching as well as by government intransigence and judicial under-enforcement,” and that the nonprofits’ arguments “endanger religious liberty, both legally and politically.”

Holly Hollman, the Baptist Joint Committee’s general counsel, said in an interview that her group is “very hesitant to oppose any good faith [RFRA] claim.” (The BJC did not file a brief in the Hobby Lobby case, but notes in Laycock’s brief that it believes the case was correctly decided.) But, Hollman added, for the nonprofits to prevail, “the Court would have to find that the government pursuing its interest in the contraception mandate through secular insurance companies is a substantial burden on the religious employer. That’s a far different case than Hobby Lobby.”

In their brief to the Supreme Court, the nonprofits describe the arrangement as the “same mandate enforced by the same penalties as in Hobby Lobby, and it is a classic substantial burden on religious exercise.”

Laycock’s brief, though, powerfully rejects this argument. He argues first that the nonprofits are, in effect, seeking “absolute deference” from the court on their claims of substantial burden. He argues that adopting this standard “would lead to untenable consequences.”

For example, he writes, a plaintiff could claim “God will punish the country and all its citizens,” if a “controversial public policy is not reversed.” That “would state a claim of substantial burden to which the courts would owe absolute deference,” the brief cautions.

What’s more, Laycock warns, the nonprofits’ overbroad argument that they are entitled to the same exemption as churches threatens the entire system of religious exemptions across the country. In addition to the federal RFRA, 32 states either have their own religious freedom laws, or interpret their state constitutions in accordance with the federal statute. Thousands of religious exemptions are codified in state and federal statutes and regulations. But that entire system, Laycock warns, is imperiled politically if courts do not “defer to reasonable efforts to draw such boundaries.”

Even if the remaining eight justices deadlock on the the question of whether the health-care law imposes a substantial burden on religious freedom Zubik could end up being decided in the government’s favor. That assumes that Justice Anthony Kennedy, the swing vote in Hobby Lobby, remains consistent. In a separate concurring opinion in Hobby Lobby, Kennedy hinted that the accommodation was the least-restrictive way for the government to achieve its objective of ensuring copay-free coverage for contraception.

Whatever the outcome, this brief by an erstwhile ally urging extreme caution on taking religious exemptions too far signals that the plaintiffs in these cases may have overplayed their hand.

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