I suspect that the government lawyers who successfully defended the HHS contraceptives mandate against RFRA and Free Exercise claims in Conestoga Wood Specialties Corp. v. HHS really would have preferred to win on different grounds. That is because the basis for the Third Circuit’s decision is legally insubstantial. On an issue that will be decided by the Supreme Court, it would be better for the government to have won on a more defensible basis than the conclusion that a “for-profit, secular corporation” cannot “exercise religion.”
The dissenting opinion by Judge Jordan convincingly demonstrates that the majority’s ultimate conclusion is wrong and that its supporting reasoning is defective. Will Baude at Volokh Conspiracy and Marc DeGirolami at Mirror of Justice have also raised questions about the panel majority’s analysis. Over the next couple of weeks, I aim to provide additional critical commentary that elaborates on criticisms previously raised and offers new angles of analysis and criticism. While some of these criticisms will be based on arguments advanced in the amicus brief that I co-authored in Conestoga, I aim to expand beyond the targeted set of arguments advanced there.
For now, I will begin with Marc DeGirolami’s argument about the short shrift given RFRA in the panel majority’s analysis. The majority opinion states: “Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim.” DeGirolami argues that the court should not have simply assumed “that a term as used in the Constitution must mean exactly the same thing as a term used in a statute.”
DeGirolami is right that there cannot be a one-to-one relationship between RFRA and the Free Exercise Clause as interpreted by the Supreme Court. The purpose of RFRA was to replace the legal standard for evaluating Free Exercise claims adopted in Employment Division v. Smith, 494 U.S. 872 (1990). But given the stated intention of RFRA, there should be a close correspondence between the pre-Smith reach of the Free Exercise Clause and the reach of RFRA. One of the purposes declared in the legislation is “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(1).
If the panel majority’s analysis had started with RFRA instead of the Free Exercise Clause, it is less likely that its analysis would have led to the wrong conclusion. To begin with, there is more textual guidance in the U.S. Code. As DeGirolami points out, Congress has declared that the protected “exercise of religion” “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” That language suggests an expansive understanding of “exercise of religion,” and it invites further inquiry into how “exercise of religion” should be understood.
As I have previously argued in connection with the Third Circuit’s earlier mistaken decision on the contraceptives mandate, “a religiously based refusal to do something otherwise required by law is an ‘exercise of religion.'” Consider the facts of Sherbert v. Verner, 374 U.S. 398 (1963), one of the two cases singled out in RFRA. The exercise of religion in that case was Adele Sherbert’s religion-based refusal to work on Saturday. See id. at 403 (describing the relevant conduct as “appellant’s conscientious objection to Saturday work”).
A corporation can engage in this kind of “exercise of religion” if a corporation can refuse, for religious reasons, to do something otherwise required by law. And it plainly can. Suppose a federal law requiring fast-food restaurants located near interstate highways to be open seven days a week. Chick-fil-A’s religion-based refusal to operate on Sundays in violation of this law would surely be an “exercise of religion” akin to Ms. Sherbert’s refusal to work on Saturdays.
The profit-making character of the corporation does not change the analysis of whether the corporation can make a religion-based decision. Chick-fil-A is a profit-making business. Yet it foregoes the profits it would otherwise make through Sunday operation because its religion-based corporate policy controls the manner in which it seeks to make a profit. Similarly, Ms. Sherbert was working for money (and later seeking unemployment benefits). Yet her religious obligation not to work on Saturday conditioned the manner in which she could go about earning money.
The panel majority opinion simply does not address this line of argument. One way in which its failure to address RFRA independently may have contributed to this failure to analyze what counts as a protected “exercise of religion” emerges from a word search for that phrase. It does not appear until page 28, after the majority has already concluded its Free Exercise analysis. In the course of its Free Exercise analysis, the Third Circuit panel majority does not ask whether a corporation can engage in the “exercise of religion” (RFRA’s words), but rather whether corporations can “engage in religious exercise” [11] or whether corporations can “exercise religion” [15]. The wording shift is subtle and almost certainly unintentional, but it nevertheless tends to lead analysis in the wrong direction. For the panel majority’s rephrasing suggests asking whether a corporation can engage in religious exercises like prayer, worship, participation in sacraments, and so on. But that is not what the governing law requires.
One might try to distinguish the exercise of religion in Sherbert on the ground that the underlying basis of the refusal to work on Saturday was so that Ms. Sherbert could engage in the religious exercise of attending worship services. The problem with this distinction is that it is sufficient for the religion-based refusal to be sincere and religion-based. It does not need to be tied to some other “religious exercise.” Consider Thomas v. Review Board, 450 U.S. 707 (1981). The exercise of religion in that case was Mr. Thomas’s refusal to participate in the production of turrets for military tanks. This refusal was based on Mr. Thomas’s beliefs as a Jehovah’s Witness. It did not matter that this religion-based refusal conditioned Mr. Thomas’s pursuit of money. The Supreme Court found it sufficient that “Thomas terminated his employment for religious reasons.” Similarly, the Third Circuit should have found it sufficient that Conestoga objects to compliance with the mandate for religious reasons. That religion-based objection is an “exercise of religion” within the compass of both RFRA and the Free Exercise Clause.
Dear Prof. Walsh:
I would be very interested in your comments on the following argument:
Limitations on the free exercise of religion are proper where a religious practice is abhorrent to ordinary standards of decency and safety. Thus government may prohibit polygamy, father-daughter incest, handling of poisonous snakes and genital mutilation of young girls, despite genuine religious beliefs that they are legitimate and indeed required by the believer’s religion.
Jehovah’s Witnesses reject blood transfusions, and Christian Scientists reject all medical procedures in favor of faith and prayer. Yet when a Jehovah’s Witness or Christian Scientist child is in imminent danger of death and can be saved by a blood transfusion or ordinary medical treatment, courts regularly order it.
If a business owned by a Jehovah’s Witness has non-Witness employees, an employee health insurance policy that denied coverage for blood transfusions for non-Witness employees would be illegal. Witnesses are perfectly free, pursuant to their religion, to refuse blood transfusions for themselves, but they are not free, if they choose to provide health coverage at all, to deny blood transfusion coverage to non-Witness employees. A fortiori, this would be so in the case of a Christian Scientist business that provided health coverage that included faith healing and prayer for their Christian Science employees but denied standard medical coverage to their other employees.
Despite protestations to the contrary, neither requirement interferes even slightly with the right of a JW to refuse a transfusion or the right of a CS to refuse medical treatment. Health coverage is voluntary for employers, who may nevertheless find it a necessary benefit to attract employees. If they choose to offer coverage, it must include transfusions and medical treatment.
The conclusion is the same where coverage is required by Obamacare. JW and CS business are free to fire their non-coreligionist employees and provide coverage that comports with their beliefs. (I recognize that this is a weak point in my argument. If you prefer, you are free to excepting Obamacare coverage.)
Suppose a legitimate church were to spring up that had as one of its core beliefs the discredited notion that childhood vaccinations cause autism. I think that the state could require those children to be vaccinated before they were permitted to enter public schools and even before they were permitted to enter private pre-schools or day-care, based on legitimate public health concerns.
The identical reasoning applies where a business owned by Catholics, or even the Catholic Church, provides health coverage for its non-Catholic employees except for birth control, or even abortion. Birth control and (for the moment) abortion are rights guaranteed by the Constitution, and there is no difference in principle between these and blood transfusions or medical treatment.
In all these cases, requiring coverage does not “impose” non-JW, non-CS or non-Catholic beliefs on employers. Rather, it prevents employers from imposing their beliefs on non-coreligionist employees.
Catholic-run institutions would refuse coverage for birth control even if it involved no increase in program cost. They refuse on principle. Suppose a same-sex couple married in New York. I suggest that a Catholic employer in New York would not be heard to deny spousal rights to an employee’s pension, available to all married employees, on the basis that the church did not recognize the marriage.
Very truly yours,
Kenneth Shaw, J.D.
Thank you for this very detailed set of comments. I have previously addressed the “Argument from Jehovah’s Witness Blood Transfusion Coverage” at https://walshslaw.wordpress.com/2013/02/10/if-rfra-protects-for-profit-corporations-whats-to-stop-jehovahs-witnesses-companies-from-refusing-coverage-for-blood-transfusions/. Parts of that response overlap with the response offered by Daniel Ortner below. Your comments and his response highlight the difficulty of pinning down what we mean when we accuse someone of imposing a belief on someone else. As I see it, the employer who refuses to provide insurance coverage for X does not impose an obligation on the employee not to do X; but the government that requires the employer to provide insurance coverage for X imposes the obligation to provide insurance coverage for X. If the employee has an obligation to do X while the employer has an obligation not to provide insurance coverage to do X, then the employer does not impose on the employee, for the employee remains free to do X, but the government does impose on the employer, for the employer is not free to refuse to provide insurance coverage for X.
This post is a really wonderful analysis of the contraception mandate cases. It really makes no sense to say that a corporation can not engage in the ‘exercise of religion.’ Individuals make corporations in order to allow them to provide a service while limiting personal liability. However, those individuals are still the owners and responsible for what the business does. Forcing an owner of a corporation to violate his conscience is just as egregious as forcing that individual to do so separately.
I have two responses to Kenneth’s argument….The first is more philosophical, while the second more practical.
First of all, contrary to what Kenneth suggests, not giving contraception coverage (or any kind of coverage) to an employee is not imposition of a belief. An imposition would be a policy saying that no employee can use contraception, but that’s not the case here. All an employer is saying is that because of religious scruples those that want to work there and get contraception will have to pay for it themselves ( either out of pocket or through supplemental insurance).
Of course, the right to religious freedom while an incredibly strong one is not absolute. Indeed, no right in the constitution is absolute. A narrowly tailored restriction that is meant to meet a compelling government interest can necessitate a violation of religious freedom. The requirement that all health care plans provide for blood transfusions ( a procedure that costs thousands of dollars and must be done in an emergency situation) is much more likely to be considered a compelling interest than the contraception mandate. The administration acknowledges this by providing an exemption for religious organizations in the first place, as if the interest was truly that compelling such an exemption would be ill advised. By continually expanding the scope of the mandate, the government has shown that its interest is not that compelling after all.
Moreover, in terms of healthcare I would draw a distinction between emergency care and voluntary services. The Morning after pill is the type of thing that one can in advance plan for as opposed to something like a blood transfusion. If one is having sex and is not covered by an employer insurance plan, it is simple to ensure that one has enough money for the pill.
Daniel Ortner
BYU Law ’15
[…] to fail to consider common sense when discussing the issue of “exercise.” As Richmond law professor Kevin Walsh mentions, why can’t a corporation–such as one comparable to Chick-fil-A–act in […]
“If one is having sex and is not covered by an employer insurance plan, it is simple to ensure that one has enough money for the pill.”
Why? What if you were date raped? What if you — as humans might do — drink a bit too much near the end of the month, and you have sex when your inhibitions are low? Or, in general, have sex in such a case while not having $50 or so for the pill? This is a misguided statement given human behavior. Morning after pills are “emergency” contraception. As to how “voluntary” it is, what does that mean? If someone believes bring the pregnancy to term is immoral, which many do, and churches think that can be a correct moral choice, how “voluntary” is it for them to do so? How “voluntary” is it to not have a baby? What about if an employer doesn’t want to pay for childbirth, since having the child is immoral? Is that “voluntary” too?
“continually expanding the scope of the mandate, the government has shown that its interest is not that compelling after all”
This is a heads you win, tails you lose argument. In fact, it is bad policy to extend the exemption too much. But, the people who point this out (moving past yourself) are often not serious. They don’t actually want consistency if the coverage is across the board. It’s a ‘gotcha’ argument. The Administration is tweaking the rules some. It is a much bigger step to have for-profit corporations generally excepted. Even if the 3rd Cir. went too far, for-profits generally are different here repeatedly. The corporation isn’t being used for a basic religious purpose, like a church or charity might be. It’s being used to sell hobby goods or cabinets or it can be a fast food place. Come on.
Birth control is a compelling thing, for preventive care, personal liberty, to limit abortions (even many pro-life people think a morning after pill is much better than waiting and getting an “abortion” later on), gender equality and to have more equal opportunity to use your compensation to make health choices matching your moral and religious opinions. We make an exception for religious institutions like we do for things like sex discrimination laws — no women priests — but would we want corporations that sell hobby products to be allowed not to employ women, since they believe God thinks women should be at home or that intermixing w/o veils are immoral?
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The being open on Sunday bit, btw, was cited at Volokh Conspiracy. The “corporation” is an inanimate object. The person that cares are those who actually cannot work on Sunday. There are enough people to operate the place whose religious beliefs would not be violated there. But, like Sabbath closing laws generally, I’m willing to go half-way. There isn’t much of an interest probably in forcing the store to be open here. But, the contraceptive mandate is much more compelling. And, like U.S. v. Lee, the company is forcing employees to be harmed while asking for a special exemption for a general applicable nation-wide social/tax policy. U.S. v. Lee was pre-Smith, so RFRA shouldn’t change matters. Also, unlike forcing the store to be open, there is much less of a “substantial” burden. This, of course, has been talked about elsewhere.
A separate reply & I’ll leave.
The corporate form is a state creation. What the religious individual here wishes to do is to require the state to use a voluntary state creation in such a way to not generally apply a certain social policy to employees based on their compensation. Employers, even if it is against their religion, probably could not reject the use of legal tender to pay people. They could not only pay in script. The corporate form, including for-profits, also can be regulated by the state and bring with it certain strings. The religious business owner is not compelled to use the corporate form. If religions can have a range of opt outs, even for-profit corporations, the result will be interesting.
I think the for-profit corporation is somewhat akin to cases involving state land or state internal processes. If a voluntary state resource is provided, it can have certain strings. Vouchers are an example. The majority here noted as did the William Baude post at Volokh Conspiracy the undeveloped nature of the law here. This should be something to be kept in mind.