In the space below, we offer some unconventional thoughts about the highly-anticipated Sebelius v. Hobby Lobby Stores, Inc. cases that will be argued in the Supreme Court next month, and that involve challenges under the federal Religious Freedom Restoration Act (RFRA) to the Affordable Care Act’s requirement that employers must provide contraceptive services in their healthcare policies offered to employees. In particular, we try to lay the Hobby Lobby disputes alongside the other big case this Term that raises religious liberty issues, Town of Greece v. Galloway. That case was argued last Fall but hasn’t yet been decided, and involves the permissibility of state-sponsored prayers before town board meetings. (Town of Greece involves important religious equality issues, as well as religious liberty concerns, but we limit our discussion in this column to plaintiffs’ religious liberty claims.) By comparing the two settings and the way advocates in each of them have framed their religious liberty arguments, we hope to identify more common ground than has previously been acknowledged in these religious skirmishes at the Court. At the same time, we try to convince readers and other commentators that with regard to certain issues, in all fairness their approaches to the two disputes should be more consistent. (One of us has previously expressed this perspective in other fora.)
The “Liberal” and “Conservative” Take on the Two Lawsuits
Although few analysts have been looking at the two lawsuits together, the two cases have much in common. Neither dispute is particularly easy to resolve, in part, we believe, because both controversies raise serious religious liberty issues. As a matter of law and social reality, the plaintiffs in both lawsuits assert serious religious liberty claims that deserve our attention, empathy, and respect. Indeed, we think that important parallels between the two settings suggest that some of the main arguments raised against the religious liberty claims in each case would apply with roughly equal force in the other case as well.
We start by noting that the gist of the commentary among church-state scholars, including many colleagues we greatly admire and respect, seems sharply split and polarized on these cases. Generally speaking (and obviously there are exceptions to our claim here), liberal commentators see a significant religious liberty issue in Town of Greece, but are dubious about, if not dismissive of, the plaintiffs’ claims in the Hobby Lobby set of cases. Conversely, conservative commentators tend to see a significant religious liberty issue in Hobby Lobby, but are dubious about, if not dismissive of, the plaintiffs’ claims in Town of Greece. Perhaps we are wrong to see parallels between these two cases, but we worry that political and cultural polarization is making it harder for everyone to appreciate the similarly legitimate concerns of claimants who, from one perspective or the other, are on the wrong side of the culture-war dividing line. And the protection of religious liberty is itself undermined if we choose to protect it only when nothing that we value personally is at stake.
Liberals (again, as a general matter) place special value on gender equity, and see universal access to medical contraceptives as an important public health and women’s rights concern. For them, protecting religious liberty in a situation that creates even small risks to women’s health and equality is a hard sell. Conservatives, by contrast, attach important value to government-sponsored religious activities, such as state-sponsored prayers during public events. If protecting religious liberty requires placing some limits on such religious activities, conservatives will experience the price of religious freedom in this context as being particularly costly.
But (and this is really our big suggestion) if we expect other people to bear what they experience as real and significant costs in order to protect religious liberty, then we have to be prepared to demonstrate that we are willing to accept costs to interests that we ourselves value as well. In Town of Greece, liberals seem willing to protect religious liberty when something they do not value, public prayer, may be burdened, but are disinclined to protect religious liberty in Hobby Lobby. And conservatives are willing to protect the religious liberty of Hobby Lobby, but assign little, if any, weight to the religious liberty interests of the Town of Greece claimants.
The Dismissive Attitude of Opponents to the Religious Claimants in Each Case
Indeed, in each case opponents of the plaintiffs/religious claimants seem incredulous, wondering what the religious adherent can possibly be complaining about. In Hobby Lobby, the suggestion seems to be that there is no reason to think that the plaintiffs’ rights are burdened there at all. If a large corporation is engaged in commerce, it is subject to hundreds of regulations regarding working conditions, hiring, salaries, health plans and retirement plans. The benefit plans it provides to its employees may cover thousands of health and retirement topics. Being in commerce and employing hundreds or thousands of people means that a lot of things out of your control are going to happen. That is the way the world is, and how it has to be. In Town of Greece, the argument is made against the claimant there that town board meetings necessarily involve exposure to a lot of disagreeable expression from both board members and the public. If you attend such a meeting, you will have to sit through a lot of speech that you find objectionable. That’s the way the system works. Learn to live with it.
But when we ask “What can they possibly be complaining about?” in religion cases, we must remember that a meaningful commitment to religious liberty means that burdens relating to religion must be treated specially; they must be evaluated differently than other costs or consequences. A business regulation requiring a business to engage in conduct that the owner or manager’s religion prohibits requires a different analysis than the analysis that would apply to other regulatory burdens that owners and managers dislike. Similarly, having to sit through a state-sponsored prayer is different than having to sit through a politically- or ideologically- annoying discussion of fiscal or other policy issues. What is key here is that if religious liberty claims deserve attention in either of these contexts, regardless of the way things generally work, then religious liberty claims deserve respect in both situations.
The Inconsistency in the Treatment of Risk-Based Arguments
Consider some more focused and sophisticated arguments against the plaintiffs in each case. Some liberal commentators argue that an employer objecting on religious grounds to insurance coverage requirements under the Affordable Care Act may simply decline to continue to offer a health insurance plan to its employees. To be sure, the employer will have to pay a penalty for doing so, but that payment will probably be far less than the savings it incurs by ending employee health care benefits. It may be that there are other costs (say, in recruiting and retaining employees) associated with discontinuing employee health insurance coverage, but it is unclear whether, and in what circumstances, those costs would constitute a substantial economic burden on businesses declining to offer health plans to their employees. Because the economic consequences of declining to offer health plans is indeterminate, and may in fact be modest or negligible, courts should not consider claimants like Hobby Lobby to be subject to a substantial burden on their religious liberty.
It is easy to understand, however, why an employer would legitimately worry that terminating the existing health plans it offers its employees might have significant negative consequences on its bottom line. Most employees would not look kindly on having their existing health plans terminated and being told to purchase insurance through exchanges developed under the Affordable Care Act. So rejecting the notion that employers are burdened here would in effect reject the idea that a risk of adverse consequences constitutes a cognizable burden on religious liberty. No one knows for sure what will happen if the employer protects its religious liberty interests by terminating the health care plans for its employees, but the risk and reason for concern are there. The employer’s worry can hardly be characterized as mere speculation.
Conservatives see that in Hobby Lobby, but seem to ignore similar concerns raised by the claimants in Town of Greece. Plaintiffs there also identify a significant risk-based burden on their religious liberty: They worry that the town board members whom they will be petitioning for support or assistance when the business part of the town board meeting is conducted will be alienated by the claimants’ refusal to stand, bow their heads, or otherwise participate in the state-sponsored prayers that open the board meeting. Of course, no one knows whether or not board members will be alienated by or annoyed at audience members who choose not to participate in the prayer, or whether or not those board members will allow their feelings about claimants’ not participating in the offered prayer, or publicly disassociating themselves from it, to influence the way the board members hear and decide the matters on which the claimants offer public comment. But here again, the risk and reasons for concern are present.
We believe that a significant risk of adverse consequences, that is, a reasonable ground for worrying about adverse consequences, should be understood to impose a legally-cognizable burden on protected interests. Certainly, the chilling effect arising from the risk of being exposed to penalties from overbroad laws is recognized as constitutionally-significant for freedom of speech purposes. But in Hobby Lobby, liberals seem unwilling to accept that indeterminate burdens on the religious liberty of employers deserve recognition, and in Town of Greece, conservatives seem unwilling to accept that indeterminate burdens on the religious liberty of individual non-adherents should be recognized, and steps taken to alleviate them. We think that the question of whether the risk of adverse consequences should be recognized as substantial burdens on religious liberty should be answered the same way in both cases.
Inconsistency in the Treatment of Attenuation and Misattribution Arguments
A separate criticism of plaintiffs’ claims in the two cases focuses on arguments about attenuation, perception and attribution. In cases like Hobby Lobby (and perhaps more so in the related cases brought by religious non-profits), claimants are concerned that they will be complicit in sinful behavior. In addition, religious nonprofits in particular are concerned that they will be misperceived as supporting or acquiescing in sinful behavior, or that support for such behavior may be attributed to them. These concerns transcend material subsidy and emphasize the expressive dimension of being associated with unacceptable conduct. These concerns for us bring to mind the Catholic idea of “scandal.” Liberals dismiss such claims based on complicity as being too attenuated. Concerns about misattribution are also deemed insignificant since they can be so easily remedied by the religious nonprofit’s publicly distancing itself from religiously objectional behavior by proclaiming its opposition to the conduct at issue.
A similar problem with misperception—indeed, we suggest an arguably more powerful example of it– also arises in the Town of Greece litigation. Commonly, the prayer giver at the Town of Greece board meetings offered what may be called a “we” prayer rather than an “I” prayer. The member of the clergy who is offering the prayer purports to be speaking to G-d in the name of the whole audience and the community. Sitting silently by, and certainly standing or bowing one’s head, while someone claims to be praying in your name creates the perception that you acquiesce or support his doing so. We consider this to be just as clear a misperception burden as the concern of religious individuals and institutions that they will be perceived as supporting the use of medical contraceptives or abortion-inducing pills when such services are covered by the health care plans they provide to their employees. Accordingly, in our judgment, if either misperception argument deserves to be taken seriously, then the misperception arguments in both cases deserve to be taken seriously.
Yet here, again, liberal commentators who sympathize with the misperception concerns of claimants in Town of Greece seem less concerned with the misperception concerns of claimants in the contraceptive mandate cases. The problem is even more acute for conservatives who recognize misperception and misattribution as a problem in the contraceptive mandate cases, but seem unconcerned about the claimants in Town of Greece. In the contraceptive- mandate cases, there is no risk of a penalty or adverse consequence if employers very publicly condemn the mandate and express their lack of support for the use of medical contraceptives. Misattribution can be somewhat mitigated by their public rejection of the government’s requirements. In Town of Greece, however, by publicly disassociating themselves from the state-sponsored prayers (either prior to, or in the wake of, the board meeting) dissenters risk alienating the very decisionmakers on the board to whom they are directing their petitions. The risk of adverse consequences is thus increased by their attempts to avoid misperception and misattribution.
We recognize, of course, that Town of Greece is a constitutional law case and that the contraceptive mandate litigation involves statutes and public policy for the most part. Thus, one might plausibly argue that town-board prayers are constitutional, while also believing that, as a public policy matter, they are a bad idea, or at least should be carefully structured in ways to minimize their coercive impact. But we don’t hear conservatives making this argument; they seem to ignore the burden on religious liberty both for constitutional and policy purposes.
There may be other powerful arguments that could be mustered to support our suggestion that people who take religious liberty seriously should be respectful of plaintiffs’ claims in both Town of Greece and Hobby Lobby and related contraceptive-mandate cases (and, conversely, that people who reject religious liberty should do so in both cases). But our key point is that we have to work hard at not seeing religious liberty issues through the red and blue prism of contemporary culture wars. Most importantly, we should be careful not to allow our sympathies for interests that are aligned against particular claims for religious liberty to prevent us from acknowledging and empathizing with plaintiffs whose concerns warrant our respect. Recognizing the reality of the religious liberty concerns asserted by claimants in Town of Greece and Hobby Lobby (and related cases) does not mean that we must agree with the remedy sought in either case. But it does reflect a willingness to take such claims seriously, even when we are uncomfortable in doing so.