A Response To The Argument That Exemptions From HHS Contraception Mandate Violate Religious Liberty

There has been an argument circulating that allowing employers to be exempted from the HHS contraception mandate is a threat to religious liberty. That it in fact violates the religious liberty of the employees.

This was put forward today again by a BYU Law Prof  in a Washington Post OP-Ed Exemptions from the ‘contraception mandate’ threaten religious liberty .

He focuses on just one particular class of plaintiffs in the litigation that is for profit business .

... ....These cases indeed pose a grave threat to religious liberty, but not to 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 contraception and related services that should be covered under the law....

It needs to be repeated , though it is often ignored , that the Affordable Care Act  could have been exempted from the Religious Freedom Restoration act explicitly by Congress. In fact they could exempt it now if they so wish. The fact that it might have sunk the Affordable Care Act in a vote , or that is it is politically hard to do is not relevant. So we have two laws in conflict , and one must ask why Congress should be bailed out here when they had an option to exempt the ACA from these requirements.

The Law Prof later notes :


.... On the other hand, the Supreme Court consistently has condemned government accommodations of religion that shift the cost of practicing a religion from those who believe it to others who don’t. For example, the court struck down a state law that gave employees an absolute right not to work on their chosen Sabbath because of the burden it imposed on others. If most employees were Christian and took Sunday off, the statute would have forced the remaining non-Christian employees to work every Sunday. This, the court said, violated the Establishment Clause: “The First Amendment . . . gives no one the right to insist that in pursuit of their own interests, others must conform their conduct to his own religious necessities.” ..

This Supreme Case that is referenced is Estate of Thornton v. Caldor which come from the days of the Burger Court. This case is sort of the bedrock of the argument that employees cannot be exempted without violating the religious liberty of others. 

I have thought since the time I read the Law Review advocating this argument that a very BROAD reading of the holding of that case was being applied and thus incorrect. Also it is hard to see how that applies to the RFRA today..

Which brings us to a good short post that goes into why this argument is folly. See On the Claim that Exemptions from the Mandate Violate the Establishment Clause via Mirrors of Justice .

The post is a good read that not only explains the complexities of the before mention Supreme Court case , but also shows the implications of this argument in other matters. It also show the full Universe of Supreme Court cases does not quite embrace the legal world view of those like the BYU Prof that wrote the Washington Post article.

I have never thought that if we do not make employers pay for the disputed items and services that it is an Establishment Clause violation. But I think the post at Mirrors of Justice is a good response and needs to be read along with the Washington Post article