By K. Hollyn Hollman, BJC General Counsel
Now that the presidential election of 2012 is over, perhaps we will hear fewer claims that religious liberty is under attack. There is little evidence that such rhetoric affected the election’s outcome, but there are plenty of worries that the public’s understanding of religious liberty has been harmed.
Conflicts between government policies and religious objectors — such as the recent battle over the Obama administration’s requirement that most employers include no-cost contraceptive coverage in employee health insurance plans — are not new. A presidential campaign, however, is a tough forum for a debate about the application of federal healthcare regulations to those who have religious objections to contraception. As we have stated, there are real legal and policy concerns at play, as well as an ongoing agency rule-making process. Absent additional and significant reforms, however, claims that the contraceptive mandate violates religious liberty will continue in the courts with varying results.
How will the dozens of cases be resolved? There are numerous fact patterns and a few different legal theories that give rise to free exercise challenges to the Department of Health and Human Services rules, which apply differently to secular, religious and religiously affiliated employers. While there is no perfect analogy for these disputes, review of two U.S. Supreme Court precedents can bring the controversy over the contraception mandate into clearer focus.
First, in U.S. v. Lee (1982), a member of the Old Order Amish, who worked as a farmer and carpenter employing other Amish, objected to employer duties related to filing and paying social security taxes. The plaintiff claimed that the Amish religion prohibited him from participating in the social security system — either accepting benefits or making contributions. The Court did not dispute the sincerity of those religious beliefs, noting that it is not within “the judicial function and judicial competence” to decide the proper interpretation of religious doctrine.
The Court acknowledged that “compulsory participation in the social security system interferes with [the sect’s] free exercise of religion.” At the same time, the Court noted that “the conclusion that there is a conflict between the Amish faith and the obligations imposed by the social security system is only the beginning, however, and not the end of the inquiry. Not all burdens on religion are unconstitutional. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding government interest.”
Relying on the government’s interest in providing a comprehensive insurance system, with costs shared by all, the Court unanimously rejected the claim that the Amish were exempt from making the mandatory contributions. The constitutional standard for free exercise cases has changed since Lee, making such a plaintiff’s constitutional claim to opt out of a nationwide governmental program even less likely to succeed, but a 1993 federal statute requires that the government meet a higher standard and gives religious liberty plaintiffs a better chance for relief.
That statute, the Religious Freedom Restoration Act (RFRA), was specifically designed to make it hard for government to substantially burden the exercise of religion without a good, specific reason. The statute requires that the government demonstrate its interest with case-specific facts, not reliance on general congressional findings about the need for regulation. When Congress passed RFRA, it recognized that many times general laws incidentally and unintentionally harm religion. RFRA was enacted to guard against such harms.
In a more recent case, O Centro Espirita Beneficente Uniao Do Vegetal et al v. Gonzalez (2005) (UDV), the Court applied RFRA to a small religious sect’s claim that the government violated the statute when it attempted to enforce the Controlled Substances Act against the church for using a sacramental tea containing a regulated substance. In UDV, the Court unanimously rejected the government’s argument that it had a compelling interest in the “uniform application” of the drug laws. RFRA, said the Court, expressly contemplates exceptions from generally applicable laws for some religious claimants. It is meant to provide a workable legislative test “for striking sensible balances between religious liberty and competing prior governmental interests.”
While the UDV case was a solid victory for the vitality of RFRA, the Court emphasized that the decision depended heavily on the facts. For instance, it pointed out that despite the government’s claim that granting the requested accommodation would undermine its ability to broadly enforce the drug laws, there were already existing exemptions for Native American religious use of a similar regulated substance. In Lee, by contrast, the Court concluded that Social Security would cease to function if citizens were allowed to opt out based on religious objections. UDV does not mean that a case with different facts would have the same result. It does, however, clarify the legal standard that the government must meet if it may lawfully impose a substantial burden on religious exercise.
Lee and UDV illustrate how claims of conscience can collide with important government interests, and the starkly different results these cases can produce. Lee teaches that countervailing concerns for health, welfare and safety will sometimes conflict with and at times override religious freedom claims, while UDV demonstrates how RFRA’s heightened burden of proof reigns in the government’s ability to prevail. While a number of courts have agreed that the government’s interest in providing comprehensive health care to women is important, it remains to be seen whether the government will be able to justify its authority to enforce the contraceptive mandate against the particular employers seeking religious exemptions.
Click here to read Hollman’s April 2012 column titled “Conscience, contraception and conflict over religious freedom.”
From the November/December 2012 Report from the Capital. Click here for the next article.
