Lawyers should always listen to what judges say. Believing it, though, is often a mistake.
Take these words: “This order should not be construed as an expression of the Court’s views on the merits.” It’s the last sentence of the Court’s order, issued Friday, in Little Sisters of the Poor v. Sebelius, a religious order's challenge to a portion of the Affordable Care Act dealing with contraception.
Formally, the words are true. The Court hasn’t voted on the issue, and technically may not ever end up hearing it. So thing for a lawyer to say is, “Thank you, Your Honor.”
The correct thing to think, however, echoes George Orwell: “There are ... about eighty ways in the English and American languages of expressing incredulity—for example, garn, come off it, you bet, sez you, oh yeah, not half, I don’t think, less of it or and the pudding! But I think and then you wake up is the exactly suitable answer.”
As Cornell Professor Michael Dorf explains, the Court’s grant of a stay to Little Sisters “suggests that, at least at this stage of the litigation, the plaintiffs have made out a colorable claim.” The nature of that claim offers a glimpse of some toxic ideas floating around in American law.
What do the nuns object to? As Lyle Deniston of SCOTUSblog explains, they object to the simple act of asking for a religious exemption to providing their lay employees with insurance coverage for contraceptive services. “The Little Sisters told the Supreme Court that even filing that form would make them a part of the scheme, and thus draw them into support for abortions or abortion-related services,” Deniston writes.
The Little Sisters object to filling out the form even though they are a “church plan.” This means, as the government noted in its brief, their employees won’t get contraceptive care no matter what form they fill out. The third party running their health plan will be “under no legal obligation to provide the coverage after applicants certify that they object to providing it.”
In other words, the Little Sisters want to be exempt from even telling the government that they are exempt from a plan that, in any case, would not require them to do anything they object to doing. Couple that with the pending claim by Hobby Lobby Stores that a for-profit corporation has a “free exercise” right to block its employees from being compensated for contraceptive methods their employers object to. Sebelius v. Hobby Lobby Stores, Inc., which will be argued on March 25, was brought by corporations owning two retail chains. The stock is held by a conservative Christian family, the Greens, who believe that destroying a fertilized egg is the equivalent of killing a living person. The corporations demand exemption from the Affordable Care Act’s requirement that employee health insurance policies cover a full range of contraceptive options. The corporations are for-profit businesses that employee 13,000 people. They are being regulated as part of a general regulation of commerce. But their owners don’t want to take part. Who is mere government to ask them to do so?
Taken together, these two cases aren’t claims for religious exemption. They are more like an ordinance of secession—a statement that religious bodies, and people, and even commercial businesses, no longer belong to society if they decide they’d rather not. The idea depends on an assumption that government itself is sinful, and presumptively illegitimate. If courts follow this notion, they risk making it impossible to have an effective government at all. And ineffective or weak government, as Peter Shane explained here a few weeks ago, was no part of the Founders’ vision for America.
Nor is there any warrant in our history for blanket religious exemptions from social norms. Consider conscientious objection. When the people’s representatives decide the nation is in danger, citizens may be asked give up their liberty and, if necessary, their lives to defend it. But in the United States, at least since World War I, religious people who object to war have been permitted to refuse to bear arms in their country’s defense.
What they get, though, is not immunity. Instead, they have been required to certify their religious objection and, if necessary, prove that it is sincere. Then they have been required to perform alternate service—working in a hospital, for example, or in a national park—to aid the nation’s survival in ways that do not involve personally killing. It is a compromise between conscience and the collective.
By analogy to the Little Sisters claim, however, truly devout conscientious objectors wouldn't be required to perform any service—since, of course, any service would contribute to the country that's at war. In fact, they would refuse to request an exemption; even filling out the form would make them complicit.
The assumption seems to be that religion releases you from any obligation of any kind to the state. And that’s apparently even true if you are a giant for-profit corporation.
I do not question that the nuns, and the Green family, are sincere. But why are they the only ones whose interest matter? These cases involve the government and the employees covered by the Act. Their interests should count, too.
In the case of the Little Sisters, government has a clear interest in keeping track of which organizations claim exemptions and making sure those claims are genuine. What judge, until recently, would have thought that interest illegitimate?
In Hobby Lobby in particular, the government has a powerful interest in making sure that its comprehensive insurance scheme provides uniform opportunities to all employees in commerce. That interest can sometimes overcome even the most sincere religious objection. In 1964, many people had sincere religious beliefs that African Americans and whites should not mix in restaurants, stores, and hotels—that this violated the words of Acts 17:26 that God had fixed boundaries for the nations of man and expected them to remain within them. (There are sincere believers of this idea even today within the so-called “British Israel” and “Christian Identity” sects.)
The Civil Rights Act did not demand that these people change their beliefs. It did not demand that they desegregate their churches, or open their homes. But it did embody a judgment by society that, in order to engage in business, they had open their businesses to all.
The same kind of governmental interest is present in the contraceptive-mandate cases: If you want to engage in interstate commerce, cover your employees. The peoples’ representatives have determined that both public health and the economy will function better if you do.
And that brings in the employees’ interests: first, in making their own health choices from a full range of options; second, in earning full benefits for their work, whether they are men or women; and finally—this one seems to be mentioned by almost no one—in their own religious liberty. For most of us, choices about contraception arise from our own consciences. In a free country, the boss doesn’t collect the employees’ beliefs at the workplace door.
The Tenth Circuit opinion upholding Hobby Lobby’s supposed right to an exemption is a remarkable document. It does not say that the Greens’ beliefs outweigh those of government and employees. It simply pretends that only the Greens have any interests at all. As Chief Judge Mary Briscoe points out in her dissent, the Tenth Circuit’s opinion “does not mention the public interest that the government had relied on at the preliminary-injunction hearing: the health reasons for promoting employee access to emergency contraceptives.” (Briscoe is the only woman on the Court. The plurality of male judges did not balance women’s health away—they just forgot it was an issue.)
How can it be that in a case concerning health-care, health interests somehow don’t matter? Whether among married or unmarried women, planned pregnancies produce better outcomes, both for mother and child and for the families involved. In other words, mothers raising children are healthier if they can space their pregnancies—and are less likely to have premature or low-birth-weight babies. Some women have chronic medical conditions and should never become pregnant; others need to manage their own health in order to prepare for pregnancy. And some contraceptive methods have important health benefits that don’t relate to contraception at all.
To effectively make their health choices, women need not only “some” contraception, or only those methods that lay employers approve; they need access to the full spectrum of medically safe methods. The public’s interest in their freedom to make those choices is huge. “There's a reason why the Centers for Disease Control and Prevention listed family planning as one of the 10 great public health achievements of the 20th century,” Adam Sonfield, a senior public policy associate at the Guttmacher Institute, said in an interview.
And beyond the health question, for heaven’s sake, think for a moment about “liberty”: A country where employees have both jobs and religious freedom will be freer than one where they must choose between the two.