On New Year’s Eve, Justice Sonia Sotomayor granted a temporary injunction against the enforcement of the contraceptive coverage requirements of the regulations implementing the Patient Protection and Affordable Care Act (commonly known as Obamacare). Although it implicates a broader set of issues, for now the injunction only applies with respect to the plaintiffs in Little Sisters of the Poor Home for the Aged v. Sebelius—nuns who run a Denver hospice and argue that providing contraceptive health insurance for their employees would violate their religious beliefs. They thus contend that, under the federal Religious Freedom Restoration Act (RFRA), they are entitled to an exemption.
Yet, as the government explained in its response filed with the Court, the Little Sisters plaintiffs already have an exemption. The regulations implementing Obamacare provide that religious nonprofit organizations need only certify their religious objection to providing contraceptive health insurance coverage, and such coverage will be provided by a third party. Moreover, the government explains, in this particular case the plaintiffs’ employees will not even receive third-party contraceptive coverage because of other legal provisions that exempt “church plans” from that obligation.
In response, the plaintiffs argue that the government mischaracterizes the operation of federal law. Church plans are not exempt from the obligation to provide contraceptive coverage, they say, and signing the form registering their objection would violate the plaintiffs’ religious obligations because it would have the effect of designating a third-party administrator as the provider of contraceptive coverage.
Neither Justice Sotomayor nor the full Court has yet ruled on whether to keep the injunction in place pending the completion of litigation in the lower courts. Meanwhile, numerous other cases present variations on Little Sisters—and two cases that are already on the Supreme Court docket present the related question of whether RFRA entitles owners of for-profit corporations to exemptions from Obamacare’s contraception insurance mandate for the corporations’ employees.
The Obamacare/RFRA cases present a number of important legal issues. But they also present a fundamental question for any liberal democracy: To what extent should people be exempted from laws that they regard as requiring them to participate in evil?
Mandatory Participation in Evil Is Ubiquitous
Two months ago, Americans commemorated the 150th anniversary of President Lincoln’s Gettysburg Address, including its famous closing line characterizing democracy as “government of the people, by the people, for the people.” While we rightly treasure self-rule, those first two aspects of democracy create the possibility of a moral dilemma, for if government is of and by the people, then its actions are of and by the people as well. And yet, the government constantly takes actions in the name of The People that are objectionable to individual people.
Pacifists object to our fighting wars. Even people who are not against all war object to fighting particular wars, or to the use of particular methods of war. Vegans object to government subsidization and promotion of animal agriculture and animal experimentation. Libertarians object to government programs that they believe breed dependency. And so on.
The problem may seem most acute with respect to taxation, for then a taxpayer feels that the government is spending her money on projects that she regards as odious. But even people who pay little or no taxes may justifiably feel implicated in the actions of government. It is, after all, our government, and regardless of where the money comes from, it acts in our name.
Yet the government could not possibly function if it could only undertake projects that enjoyed the unanimous support of the people. Instead, we permit the government to act on our collective behalf when the democratic process, as constrained by legal protections for minority rights, empowers it to act—notwithstanding the inevitability of dissent.
In rare circumstances, the law grants people rights to object to how the government acts on their behalf. For example, in a line of cases involving dues that are paid to labor unions for their collective bargaining activities, and to college activity funds, the Supreme Court has held that the First Amendment right to free speech includes a right not to have one’s money spent on behalf of ideological causes with which one disagrees. These cases are somewhat puzzling, because there is no right to opt out of having the government itself spend money on causes with which one disagrees, but the Court nonetheless remains committed to them.
In addition, taxpayers have legal standing, as taxpayers, to object to the government’s spending public funds in ways that violate the First Amendment’s Establishment Clause. Although the Supreme Court’s recent case law narrowly construes such taxpayer standing, the core of the doctrine still remains on the books. It is what enables people to go to federal court to object to religious displays on public property.
Finally, there is RFRA, federal legislation which was enacted in 1993, with overwhelming bipartisan support, in response to a Supreme Court ruling—Employment Division v. Smith—that narrowly construed the First Amendment’s Free Exercise Clause as no more than an anti-discrimination rule. Under RFRA, people with religious scruples may obtain exemptions from burdensome laws, even if those laws do not specifically target religion. RFRA forbids the federal government from “substantially burden[ing]” anyone’s “exercise of religion”, unless the burden is the “least restrictive means” of furthering “a compelling government interest.” A case like Little Sisters poses questions both about what counts as a substantial burden, and about when the test for imposing such a burden is satisfied.
The dues cases and the taxpayer-standing cases appear to implement a statement of Thomas Jefferson, who declared: “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.” Whether the cases properly implement that principle is open to debate, but note that RFRA implements a different principle—the notion that there is something especially onerous about the government’s commanding people to take actions (or to refrain from taking actions) in violation of their sense of religious obligation.
Is Religion Really Special?
Is RFRA too narrow? After all, people can have conscientious objections to participating in what they regard as evil, even when those objections are not religious in nature. For example, an atheist pacifist may feel just as strongly that war is immoral as a Quaker does.
The Supreme Court was sensitive to just this concern when it defined religion broadly for purposes of the conscientious objector statute governing military service in the 1965 case of United States v. Seeger. That possibility is available for RFRA as well, but it comes at a potential cost: the more broadly the Court interprets religion for purposes of deciding what objections count, the more narrowly it will be tempted to construe claimants’ rights under the law; otherwise, a flood of exemptions cases might ensue. Accordingly, in future cases, the Justices might construe RFRA to confer exemptions based only on objections that are rooted in religion as it is conventionally understood.
Would such a limitation make sense? If the distinction between religious obligations and non-religious obligations of conscience can be justified (and I am not sure that it can be), that is because the government puts people in an especially difficult position when it commands them to take actions that their religious faith forbids, or to refrain from taking actions that their religious faith commands. But if that is the principle in play, then one must be careful to reserve RFRA exemptions for cases of genuine conflict with religious duty.
A nun who “feels” like she is participating in evil when she signs a paper certifying her conscientious objection to participating in the provision of contraception insurance has no greater entitlement to a religious exemption than I do when I, as a vegan, feel like I am participating in evil when I file a tax return that enables some portion of the money I pay the government to be used to fund animal agriculture and experimentation. RFRA only kicks in when the level of participation that is mandated actually contradicts religious obligation.
Put differently, it is not enough for the Little Sisters plaintiffs to seek to avoid participating in what they regard as evil, even if their judgments about what amounts to evil come from religious authority. They must claim that the mandated participation in fact contravenes some religious obligation.
What Counts as Religious Exercise?
Perhaps the Little Sisters plaintiffs can satisfy that demanding test. Perhaps Catholic teaching, as the plaintiffs understand it, not only forbids them from using contraception, but also forbids them from playing any role in providing contraception to others, even a very attenuated role.
Even if official Church doctrine only forbids Catholics from using contraception themselves, the plaintiffs still could have a RFRA claim based on their own, idiosyncratic, interpretation of religious obligation. Longstanding Supreme Court case law provides that secular courts will not inquire into whether a religious belief is officially sanctioned by religious authorities—only into whether it is sincerely held.
Two Salient Precedents From the 1980s
But even a sincerely held belief that some action is sinful should not result in a religious exemption where the action primarily consists in denying somebody else his or her freedom to act on a different belief. Two Supreme Court cases from the 1980s may illustrate why not.
In the 1986 case of Bowen v. Roy, the Supreme Court held that freedom of religion did not permit Native American parents to prevent the government from assigning their daughter a Social Security number, even as the Court accepted the parents’ claim that the government’s reference to their daughter by number violated their religious beliefs. And in the 1988 case of Lyng v. Northwest Indian Cemetery, the high Court rejected a challenge by (different) Native American individuals and organizations to a federal Forest Service plan to build a timber-access road on ground that the plaintiffs regarded as holy.
Although Roy and Lyng both construed the Free Exercise Clause of the First Amendment, rather than RFRA, they did so before the Supreme Court’s decision in the Smith case. They may thus be regarded as informative regarding the meaning of the religious freedom that RFRA “restored.” And while the outcomes in both Roy and Lyng can be fairly criticized as insensitive to Native American religion, the core insight underlying each case seems right: Claims of religious liberty will be more difficult to sustain when the claimant objects to how the government itself is acting than when the challenged law or policy chiefly concerns the claimant’s own conduct.
Peaceful Coexistence Imposes Unavoidable Burdens
That lesson seems especially salient in the Little Sisters context, for here, the plaintiffs do not just seek to block the government from acting in the generic public interest. They seek to block the government from assisting other people—who do not share the plaintiffs’ religious views—in obtaining contraception.
To be fair to the plaintiffs, they do not literally claim a right to prevent anyone from obtaining contraception. But their extremely broad notion of participation—in which even certifying that they are exempt from providing contraception insurance counts as religiously-barred indirect participation in providing contraception—borders on the impossible to accommodate.
Liberal democracy poses challenges for people with expansive views about what counts as participation in religiously forbidden activities. Some sects—like the Amish and ultra-orthodox Jews—address this concern by withdrawing into their own private enclaves. But when people of faith participate in the larger society—even for the most noble purposes, as when nuns run a hospice—there is a limit to the extent to which they can be exempted from the general rules governing society.
That is a real burden for some persons of faith, but the alternative would be worse. It would be an illiberal society, one in which people could, say, block the publication of cartoons that they regard as religiously offensive on the ground that merely living in a society that tolerates such cartoons constitutes impermissible participation in blasphemy.
Some claims for religious exemptions cannot be granted because to grant them would convert liberal democracy into theocracy. Neither the Constitution nor RFRA should be construed to require that result.