JURIST Guest Columnist Caroline Mala Corbin, of University of Miami School of Law, discusses whether filing paperwork in order to obtain a religious exemption is a substantial burden on religious liberty…
Does filing paperwork in order to obtain a religious exemption from a law constitute a substantial burden on religious liberty? That is the question posed by a number of non-profit religious employers that have asked the US Supreme Court to block a law requiring them to do just that. Although the court has yet to grant certiorari in any of these cases, it has stayed the rulings of lower courts that have held that the paperwork requirement does not substantially burden religious employers. The injunctions do not necessarily indicate how the Supreme Court will rule (or even whether it will accept the cases). However if the government’s simple administrative procedure for receiving a religious exemption were itself treated as an assault on religious liberty, it would be a troubling interpretation of what constitutes a “substantial burden.”
Because we do not live in a Lochner era free-for-all, employers have certain obligations towards their employees. Employers must provide their employees with a safe place to work. Employers must pay their employees a minimum wage and contribute to their social security savings. And after the Patient Protection and Affordable Care Act (ACA), employer-sponsored health insurance plans must cover basic preventive care without any cost-sharing. Because contraception is vital to women’s health, that preventive care includes FDA-approved contraception. In fact, the Institute of Medicine recommended that contraception be fully covered precisely because it is so essential for women’s well-being.
It is this last requirement—often called the contraception mandate—that has proven so contentious. Last summer the court ruled that for-profit corporations like Hobby Lobby Stores, Inc. were entitled to an exemption from the mandate under the Federal Religious Freedom Restoration Act (RFRA). Under RFRA, religious objectors need not comply with a federal law that substantially burdens their religious practice unless the government can show that the law advances a compelling interest in a narrowly tailored way.
Hobby Lobby focused on for-profit companies because non-profit organizations were already exempt. Under Department of Health and Human Services regulations, religious non-profits need not include contraception in their health care plans. Instead once a religious non-profit declares its religious opposition, it can have its health care insurer or, if it is self-insured, a third party administrator, provide coverage instead. Indeed, the Hobby Lobby court pointed to this accommodation as a reason why the contraception mandate’s application to religious for-profits was not narrowly tailored. If this accommodation worked for non-profits, the court reasoned, then why not for for-profits?
Nonetheless, some non-profits have complained that the religious accommodation itself violates their religious rights. They argue that filing the paperwork that grants them their exemption imposes a substantial burden on their religious practice. According to these religious non-profits, signing a two-page form or sending a letter facilitates the provision of contraception, thus making them complicit in sin.
Although multiple courts (including the US Court of Appeals for the Third Circuit [PDF], the US Court of Appeals for the Sixth Circuit [PDF], the US Court of Appeals for the Seventh Circuit and the US Court of Appeals for the DC Circuit [PDF]) have rejected this claim, the US Supreme Court has stayed these decisions. Mere days after writing in Hobby Lobby that the accommodation for non-profits “constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty,” the court granted an emergency injunction against that very alternative in Wheaton College v. Burwell [PDF]. In her Wheaton dissent, Justice Sotomayor lamented that “[t]hose who are bound by our decisions usually believe they can take us at our word. Not so today.”
Setting aside the court’s mixed messages, the non-profits’ claim should fail. At the most basic level, it misunderstands how the contraception mandate works. The religious organizations believe that their written refusal triggers the provision of contraception. As a matter of law, they are wrong. Their paperwork does not cause contraception coverage. The Affordable Care Act, passed by a democratically-elected Congress, does. It is federal law, not the completion of any form, that creates the obligation to cover contraception. In short, in the words of the the US Court of Appeals for the Third Circuit [PDF]: “By participating in the accommodation, the eligible organization has no role whatsoever in the provision of the objected-to contraceptive services.” While courts might defer to a religious organization’s interpretation of its own religious beliefs, courts should not defer to its interpretation of federal law.
Moreover, exemptions are not granted for every religious burden, only substantial burdens. Even if paperwork somehow did facilitate contraception use, it would not amount to a substantial burden on religion. The link between the employer’s actions here and the employee’s use of contraception is far too attenuated. Paying a salary above minimum wage facilitates contraception use by making it more affordable. Indeed, it arguably facilitates contraception use more directly than opting out of contraception coverage, yet few would seriously argue that religious non-profits should be exempt from the Fair Labor Standards Act as a result. Clearly, not every act of facilitation implicates religious liberty. To hold otherwise would be to disregard Congress’s decision to reserve religious exemptions for substantial burdens.
Even if a law substantially burdens religious exercise, religious exemptions are still not available if the law passes strict scrutiny. The Hobby Lobby court recognized that the contraception mandate advanced compelling state goals. Granted, it was a tepid confirmation by Justice Kennedy’s controlling concurrence, but he did acknowledge that the mandate furthers “a compelling interest in the health of female employees.” In addition to its centrality to women’s health—over 99 percent of women who have ever had sex have relied on contraception—contraception is also essential to women’s autonomy and equality. It is fundamental to autonomy because women cannot be autonomous agents without the power to decide what happens to their own body. It is core to equality because without the ability to control when or whether to have children, women cannot participate equally in the social, economic and political life of this country. There is also a strong argument—and one endorsed by the EEOC — that a health insurance plan that covers all basic preventive care except for contraception amounts to sex discrimination in violation of Title VII.
As for narrow tailoring, it is difficult to imagine an alternative that is less intrusive for employers than certifying that they have religious objections and seek an exemption. One gets the impression that the employers’ real objection is not that they have to provide contraception, but that their employees are able to obtain it. In fact, some non-profit employers have argued that, like churches and other houses of worship, they should be absolutely exempt. In other words, they will only be satisfied if the contraception mandate does not reach their employees.
To the extent that a religious accommodation denies employees the same access to health care—or a safe workplace minimum wage or social security benefits—guaranteed to other employees, the accommodation burdens the very people employment laws like the ACA was designed to protect. The Religious Freedom Restoration Act should serve as a shield, not a sword. It should especially not serve as a sword when wielded by employers against their employees. Employees finally have a right to health insurance that covers contraception without cost-sharing. It is they who should decide whether or not to exercise this right, not their employers—and certainly not because officially stating an objection to contraception is deemed a substantial burden on employers’ religious beliefs. Allowing employers to circumvent federal employment protections on such thin grounds not only resurrects Lochner-era exploitations, but also does so in a way that allows employers to impose their religious views onto their employees, who may very well not share them.
Caroline Mala Corbin is Professor of Law at the University of Miami School of Law. She teaches US Constitutional Law I, US Constitutional Law II, First Amendment, the Religion Clauses, and Feminism and the First Amendment. Her scholarship focuses on the First Amendment’s speech and religion clauses, particularly their intersection with equality issues.
Suggested citation: Caroline Mala Corbin, Paperwork as a Substantial Religious Burden, JURIST – Forum, May. 22, 2015, http://jurist.org/forum/2015/05/Caroline-Corbin-Religious-Burden.php
This article was prepared for publication by Yuxin Jiang, an Assistant Editor for JURIST Commentary service. Please direct any questions or comments to her at firstname.lastname@example.org
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.