How the Case of an Amish Farmer Could Doom Hobby Lobby in Court

It doesn't matter whether an employer is secular or religious, non-profit or for-profit. The Supreme Court’s precedents show that the government's interest in nationwide programs trumps all. 
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Edwin Lee was a Pennsylvania Amish farmer and carpenter. God smiled on his labors, and he hired fellow Amish to work on his farm and in his shop.  Naturally he paid them—after all, Scripture tells us that the laborer is worthy of his hire. But beginning in 1970, Lee refused to pay the Social Security payroll tax on his workers' wages the government said he owed.  Amish do not believe in social insurance, based on language in Paul’s First Letter to Timothy: “If any provide not for his own, and specially for those of his own house, he hath denied the faith, and is worse than an infidel.”

The Internal Revenue Service took a different view, and in 1981 Lee’s case ended up in front of the United States Supreme Court. 

If the current Court concerns itself with precedent (which I have come to doubt), United States v. Lee should play a large role in the deliberations over Sebelius v. Hobby Lobby and Conestoga Wood v. Sebeliusthe cases, to be argued March 25, that will decide whether for-profit corporations can exempt themselves on religious grounds from the contraceptive-coverage requirements of the Affordable Care Act.

That’s because the Court decided that the requirement that making Lee pay payroll tax for his workers was a “burden” on his rights under the Free Exercise Clause of the First Amendment—in fact, that paying the tax was “forbidden by the Amish faith,” and that mandatory payment “interferes with their free exercise rights.” (Congress had tried to accommodate the Amish by providing in the statute that self-employed Amish did not have to pay Social Security tax, but Lee and other Amish also wanted an exemption from paying taxes on workers they hired.)

Having found a burden on Lee’s free exercise, the Court then went on to hold unanimously that “the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the law.” In addition, exempting objectors from paying employees’ payroll tax would “impose the employer's religious faith on the employees.”

In other words, the Court acknowledged that Lee had a sincere belief and the tax made him violate it. But he still lost because the government had what we’d call today a “compelling interest” in the Social Security system. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court’s unanimous opinion said, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.”

For those who sympathize with Lee—and I do—his story has a happy ending.  Passed in 1994, 26 U.S.C.A. § 3127 changed the Social Security laws to exempt any employer or partnership consisting of members of any “recognized religious sect” that is “conscientiously opposed to acceptance of the benefits of any private or public insurance” from paying payroll taxes for any employee “who is also a member of such a sect.” In other words, Congress did what a legislature can do and a court can’t—it rewrote the statute to cover the narrow case where the system could accommodate the beliefs of both employers and employees without threatening the overall program.

Hobby Lobby and the other challengers to the employee-insurance mandate do not want to comply with a general regulation of what is unquestionably interstate commerce—employee compensation and health insurance. In their brief filed February 10, they argue that “the mandate compels Respondents to do precisely what their religion prohibits or face draconian consequences.”  This is almost precisely the same claim as the one raised by Edwin Lee. If the Court is faithful to precedent, the government’s interest in uniform enforcement of its health-care plan—and in protecting the consciences of employees—will trump that belief.

There is a distinction between the two cases, of course: Lee arose under the Free Exercise Clause. The current cases concern the Religious Freedom Restoration Act, which was passed in 1993, well after Lee, and was intended to be more protective of free exercise rights than the Constitution. But that is, as lawyers say, a distinction without a difference: RFRA was passed because, in 1990, the Court lowered the standard for Free Exercise Claims. The standard RFRA intended to restore is precisely the standard the Court applied in Lee—that is, a balance of the burden on free exercise v. the “compelling interest” of the government. As far as Social Security goes, the Burger Court applied what is now the RFRA standard and rejected it unanimously. 

So to uphold the Hobby Lobby claims, the Court’s majority will have to find its way around Lee. There are two ways they could do that, both of them bad.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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