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

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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.