The Constitutional Answer to Balkanization: The Recent Controversies Regarding Hercules and Chick-fil-A, and a Wrongly Decided Federal District Court Case


Last week, U.S. District Judge John Kane, of the District of Colorado, issued a preliminary injunction against the enforcement of the provisions of the Affordable Care Act (ACA) that require employers to include contraceptive coverage in their healthcare plans.

The plaintiff challenging the ACA provisions, in the case before Judge Kane, was a Colorado for-profit heating and air conditioning, or HVAC, firm called Hercules.  Why did Hercules bring the challenge?  Because its owners, for their own personal religious reasons, oppose contraception.  The corporation itself, however, has no connection at all to religion.

At about the same time the Hercules case was making headlines, Chick-fil-A’s CEO, Dan Cathy, announced that his faith led him to oppose gay marriage.  In response, conservatives lined up to buy Chick-fil-A meals.  Then, gay couples staged kiss-ins across the country at Chick-fil-As.

These stories illustrate the troubling American trend toward Balkanization, a phenomenon that occurs when individuals can only deal with their country’s or area’s culture through their own religious identities.  The etymology of the term is roughly as follows: There was a time, in the Balkans, when individuals could ride on public transit unaware of whether they sat next to a Muslim or a Christian.  It simply did not matter.  Eventually, however the very religious identity that once had been seen as innocuous became the most important fact that one could know about another person, and the society splintered along ethnic and religious lines.  This is shorthand history, to be sure, but it is nevertheless instructive for the future of America.  Luckily, however, the Constitution does not sanction this drive by some religious believers to imprint their beliefs on their fellow Americans and divide America into religious camps.

Chick-fil-A, Constitutional Rights, and the Free Market

Chick-fil-A’s CEO Dan Cathy has a highly protected First Amendment free speech right to speak publicly about his political and religious views.  There is no debate about that.

Consumers also have a right to express their political and religious views as well, and to choose or reject Chick-fil-A based on their own beliefs and politics.  The Framers of the Constitution carefully crafted this set of co-existing speech rights, which leads to a lively marketplace of ideas.  The long lines in support of Cathy and the kiss-ins, respectively, are thus parts of a long-established system that fosters debate and reflection.

But Cathy has no right to any particular market share in the fast food industry.  And a decision to freight a product with political significance in a highly competitive market, like the fast food market, is risky.  Cathy thrust Chick-fil-A into the middle of the hottest religio-political debate in the country.  Some people showed their support; others will never go back.

At this point, the businessmen have taken back the reins, apparently, as Chick-fil-A’s parent company now says that it has no more to say on the matter, and franchise owners are resolutely focused on business, not religion or politics.

Given the demographics of support for gay marriage—with older Americans inclined to oppose it, and younger Americans, including conservatives, inclined to favor it—it will be interesting to see how Chick-fil-A fares over the years, and whether Cathy will ultimately regret mixing religion with business.  Cathy himself may not have any regrets on this score, because of his devotion to his religious beliefs, but his franchisees in many locations (especially more liberal ones, such as San Francisco or New York City) may not share his willingness to offend certain customers.

In the end, the market will tell us whether this CEO’s decision to make headlines with his religious beliefs will hurt or harm his business.

The Hercules Decision and Why It Is in Error

Judge Kane’s decision will not be upheld in the end, because it is fundamentally confused.  A secular corporation, like Hercules, is not a religion, and does not have religious beliefs.   It does not even have standing (that is, the right to go to court) to raise arguments regarding the constitutional right to the free exercise of religion.

Moreover, the religious men who run Hercules do not provide health care out of their own pockets; they do so through the corporation.  The corporation exists, separate from these men, precisely so that their personal lives, liability, and wealth can be shielded from the corporation’s fate.

Judge Kane noted that the ACA contraception provisions have religious exemptions, which I discussed in this earlier column.  Under the ACA, churches do not have to provide contraception, but religiously affiliated universities and other institutions do.  So do private corporations like Hercules.

Nevertheless, Judge Kane somehow found, in his decision, that Hercules likely has a successful argument that there is a free exercise right (under the misguided Religious Freedom Restoration Act, also known as RFRA) to carve out a larger ACA exemption than that which typically extends to a for-profit corporation.

The men who run Hercules are obviously aggrieved that the federal government has instituted a federal system of health care that mandates the availability of contraception, but their remedy is not to invoke the Constitution or any “free exercise right.”  Rather, their solution is political.  They may try, if they so choose, to gut the ACA as a whole, or simply to get the relevant provisions of it repealed.

If Judge Kane’s Decision Were Correct, It Would Create a Perilous Slippery Slope

Let’s also look at this from the perspective of the employees.  Under federal law, Hercules may not discriminate, in its hiring, on the basis of religion.  That means that its employees’ beliefs need not reflect the CEO’s.  Indeed, some employees might have no religion at all.  In the ACA, the federal government instituted a neutral, generally applicable rule regarding contraception services, in part based on the high cost of pregnancy and unplanned pregnancies.  That rule operates in the spirit of the anti-discrimination provisions, and precludes Hercules’s founders from imposing their own religious beliefs about contraception upon employees who do not happen to share their beliefs.

Under the ACA, those among America’s employees who believe in the use of contraception (and those who do so believe constitute a large majority of Americans) will be able to obtain it through their employer’s health care plan.  Those who do not believe in contraception will, of course, not be forced to use it.  The ACA does not force the owners of Hercules or their families to use or buy contraception.  Their objection is to paying for health care for those who have different religious convictions on the issue.

In other words, this controversy is about religious liberty on both sides, not just one—a reality that RFRA and Judge Kane fail to acknowledge.

The Dangerous Slippery Slope that Judge Kane’s Decision Creates

Judge Kane’s decision creates a super-slick slippery slope.  If the Hercules decision were correct, then it would mean that religious CEOs of for-profit corporations could use their power to impose their religious practices on their employees, or to avoid the regulations that affect every other employer.

How about a belief against Society Security taxes?  Amish employers tried to invoke just such a belief and lost, before the U.S. Supreme Court, in United States v. Lee.

Or, what if your employer is a Jehovah’s Witness, who does not believe in blood transfusions?  Under Judge Kane’s reasoning in Hercules, your employer could exclude blood transfusions from your health coverage, even though you might need blood transfusions to save your life, or the life of your child.

Moreover, there is no requirement, in Judge Kane’s decision, that a believer must be a member of a religious organization. Accordingly, this decision opens the door to objections from individual religious believers who hold as true idiosyncratic religious tenets.

What happens if your employer does not believe in vaccinations, or antibiotics, annual checkups for children, or X-rays?  Under Judge Kane’s Hercules ruling, an individual employer could unilaterally exclude such routine services from employees’ health care plan—a patently absurd result.

There is also no way to restrict Judge Kane’s reasoning to health care.  If employers can pick and choose health care options based on their religious beliefs, then what is next?  A Muslim shop owner who insists that all women employees wear burqas?  A Baptist or Mormon employer who refuses to hire women because he believes that they should be raising children and performing housework, rather than working outside the home?

Finally, if Kane’s decision were upheld, the future would look like this: Employees would need to know the religious beliefs of the CEO or owner of a corporation to understand the health care plan.  They would have to compare their beliefs to the owner’s beliefs, and, when looking for jobs, compare companies according to the religious beliefs of the company, not only the quality of the product or the workplace.  That means Catholics would apply to work for Catholics; Baptists for Baptists; and so on. And the free market would be undermined, because, for a thriving economy, businesses need the best worker for a job, not the best believer.

Or, conversely, religious believers would be subjected to ever-increasing demands that they engage in the religious conduct of their bosses.  The marketplace itself then would become a source of religious oppression.

Judge Kane’s decision is highly likely to be overruled on appeal, but even though that is the case, it is still chilling that a federal judge could reach a result that goes so completely against the federal Constitution.

What stands between us, as Americans, and religious Balkanization?   The free market and the wise federal judges who—unlike Judge Kane—can tell the difference between a for-profit corporation and a religious organization, and who rule accordingly.

Posted in: Speech and Religion

4 responses to “The Constitutional Answer to Balkanization: The Recent Controversies Regarding Hercules and Chick-fil-A, and a Wrongly Decided Federal District Court Case

  1. Max says:

    Ms. Hamilton may be a professor of law at Cardozo School, but that doesn’t make her right.

    Chick-fil-A’s Dan Cathy was NOT speaking on behalf of his corporation when his comments were thrust into national prominence by the media which made the errant connection.

    Prof. Hamilton simply reiterates the same erroneous information as fact.

    And that’s the trouble with most young people in America today. Having been raised on the mind-numbing classroom demeanor of socialist/communist teachers and professors — who speak with such apparent authority that their words go unchallenged by their minions who have been taught not to think for themselves.

    America is not being “Balkanized” (another media-created term), it is being torn apart by those who would impose their own Godless beliefs on the rest of society. “You may be entitled to your own opinion,” Prof. Hamilton would say, “but it’s incorrect, and you must conduct yourself by mine.” Nonsense!

    Truth be told, Americans cherish “values”. They are repulsed by those who have none.There are hundreds of corporations and small, privately operated businesses in America whose founders, owners, and executives have deep spiritual convictions. Just as it is wrong for them to compel their employees to follow those same beliefs, it is wrong for a democratic form of government to tell those same businesspersons, “You are not free to express your beliefs. Not from a business perspective.”

    Chick-fil-A is not the only corporation in America that is guided by Judeo-Christian biblical principals. It is one among hundreds. But the so-called “left” in America wants nothing to do with religion or religious values, and has no tolerance for those who do.

    Given free reign, the “left” will take America down the same road that the Roman Empire followed . . . directly into the history books as “once great, but an utter failure in the end.”

  2. Nina Stancu says:

    I would have liked if Court had forced that close-minded religious fanatic company owner to get in-charged and support all the expenses of all the children had by his employees due to his stupidity ! I’d love to be his employee then , I swear to God !

  3. Joseph Simmons says:

    Simply because a religious person chooses to go into business, does not mean he can be compelled to do things that violate his religious beliefs. The nature of his business is irrelevant, as he doesn’t have to register his religious beliefs to earn a constitutional exemption.

    There is no slippery slope, unless you completely ignore existing jurisprudence behind the cases and situations you raise. Existing jurisprudence does not mean a person can be compelled to do things against their religious beliefs if they decide to start a business. This is a free society, is it not Professor Hamilton?

    There are neutral and generally applicable laws that do not run afoul of the 1st Amendment, though it is no mystery why you do not rely on that traditional analysis to support your conclusion. The parade of intended horribles can be examined according to existing constitutional doctrines. Like the blood transfusion hypothetical. Is there an existing law requiring insurance to cover transfusions? Why does/would that law exist? Are Jehovah Witness employers denying coverage for transfusions? If not, why not?

    The imagined result of the imagined slippery slope does not comport with reality.

    “Finally, if Kane’s decision were upheld, the future would look like
    this: Employees would need to know the religious beliefs of the CEO or
    owner of a corporation to understand the health care plan. They would
    have to compare their beliefs to the owner’s beliefs, and, when looking
    for jobs, compare companies according to the religious beliefs of the
    company, not only the quality of the product or the workplace.”

    How often do people choose their employment based on the health care plan, particularly whether it will pay for their contraception? Aside from the Sandra Flukes who make contraception an activist cause, people decide employment – and even the purchase of health insurance – largely on the basis of their finances. People are surprised all the time that their insurance doesn’t cover one thing or another, notwithstanding their employer’s religious views. If contraception (or transfusions) coverage is a hugely important factor, you might carefully scrutinize the plan offered, but it’s absurd to think it would ever be the norm.

    Most of the problems are imagined, your analysis ignores existing doctrine, and strives to suppress religious rights whenever a person sets foot outside their church or fails to register their work as religious.

  4. Bob Ritter says:

    Professor Hamilton, a colleague, has written an excellent review of Judge Kane’s misguided opinion. Of particular note are her points that (1) commercial businesses are inherently secular entities whose purpose is to create profit for owners while providing benefits to their customers and (2) EMPLOYEES also have religious freedom rights.

    For those who believe that employers have a right to foist their religious beliefs on their employees, I would argue such a view is one of neo-slavery — where the employee is totally at the mercy of the employer. While this view may appeal to egotistical “owners,” it produces an unhealthy work environment that is not in the best interests of the business, its employees or customers.

    The second point is more nebulous. If a “business” doesn’t have religious freedom rights, that should be the end of the story. The defendant’s attorney would argue that the plaintiff business has failed to state a claim upon which the court could grant relief. Since businesses are a-religious, the plaintiff has failed to state a valid claim thus denying the court of jurisdiction to hear the case. While I believe this to be correct in principle, in the real world it’s never that easy. For example, what about a person who owns 100% of the business? Are the owner and the business indistinguishable? I am not sure that I can answer that question unequivocally.

    This is where Professor Hamilton’s slippery slope comes into play. Once owners are allowed to inflict their religion on the business and its employees, society is guilty of allowing to infect the business with cruelty in the name of (the owner’s view of) virtue. Put another way, like all rights, owner’s rights are not absolute.

    I would have preferred Professor Hamilton to expand upon her understanding of the employee’s religious rights because many view birth control, etc. as a reproductive right, and not directly in terms of religious freedom. Thus, we’re talking about the court balancing the business/owner’s religious freedom with the employee’s reproductive freedom. Here, the arguments become tricky. Technically, if this is how the arguments are framed, the government may have difficulty defending the employee because employee would not be suffering a counterbalancing religious “harm” under the Religious Freedom Restoration Act because employee is not asserting a freedom of religion claim.

    This is where we need to look at the bigger picture. While some, many or most employees may look at contraceptive coverage as strictly a reproductive right, to points. First, the employer opened the door to argue contraceptive coverage as a religious freedom issue and, now, cannot deny employee from arguing the same. Second, an employee’s view on contraception is part of her larger “world view” and, in this context, is part of her religious or nontheistic view of life in general. Consequently, it is appropriate for the court to look at the religious employer’s refusal to provide contraceptive coverage as infringing upon employee’s religious freedom (whether or not the employee looks at contraceptive coverage in religious terms or not).

    Constitutionally, a private employer cannot violate an employee’s freedom under either the First Amendment or the Religious Freedom Restoration Act because both legally apply to governmental acts, not acts of private individuals or business.

    However, if the government were to cave into religious business owners, such a decision would have the direct affect of denying or making contraceptive coverage more difficult for women to obtain. And such denial would be a substantial burden on female employees. Therefore, I believe that Judge Kane, in permitting such exception, has badly misconstrued the First Amendment and the Religious Freedom Restoration Act.

    Backtracking a little, to be honest, the government is in a very difficult situation. The employer’s must either carry contraceptive coverage or not. There is no middle ground. One side necessarily loses. Nevertheless, a difficult choice must be made based on a balancing of the interests.

    In my view, because the employer must provide health insurance, the addition of contraceptive coverage is incidental and de minimis. It does not rise to the level of “substantial burden” on the employer and, therefore, does not violate either the First Amendment or the Religious Freedom Restoration Act.