The cases challenging the Affordable Care Act’s contraceptive mandate challenge the conservative majority on the Court: Will they respect precedent if it pushes them toward upholding the mandate, or brush by it in their eagerness to carve out a religious exception?” Last week, I pointed out a Burger-era precedent, United States v. Lee, that should dispose of the case entirely. But to today’s conservatives, the Burger Court is so, well, 20th century. My own sense of this Court is that the majority may be willing to junk its jurisprudence in their eagerness to gut the Affordable Care Act.
But here’s a tougher question: Will the majority abide by its own precedent?
If so, Hobby Lobby and the other challengers don’t even get out of the starting gate. The Burger, Rehnquist, and Roberts Courts have all been clear: These plaintiffs have not suffered any injury worthy of redress under the Constitution.
Hobby Lobby and the others object to the ACA’s requirement that they provide health insurance to their employees that covers a set range of health services, including all contraception options currently approved as safe. Among those are medicines that the plaintiffs believe may prevent fertilized eggs from implanting in the uterus. In their belief, any fertilized egg represents a human life, and when such an egg does not implant, a death has occurred.
But the act does not require the employer to provide the pills or even to pay for them. Employers pay for an insurance program. That insurance, not the pills themselves, is part of the package the employees receive by law as payment for their work, just like their hourly wages. No employee, male or female, is required to use any method of contraception. That is the employee’s private medical decision. The employer is not involved.
To the plaintiffs, that doesn’t matter. Their brief, filed last week, argues that they "object to being forced to facilitate abortion by providing abortifacients, and that objection does not turn on the independent decisions of their employees."
The Court has repeatedly declared this "facilitate" argument categorically false. Most recently, it did so by proclaiming that an objector to how someone else uses his or her wages has suffered no injury and thus can’t even bring a lawsuit. It has so held in cases that concern the most sacred single religious guarantee in American history—the promise, in the First Amendment’s Establishment Clause, that no taxpayer will be forced to pay tax money into the coffers of a religious organization.
That guarantee flows directly out of James Madison’s 1785 Memorial and Remonstrance, the mother document of American religious freedom. Madison was writing to protest a proposal in the Virginia legislature for a state tax to support churches in every county. The small size of the tax would not prevent it from being a primal violation of the sacred right of conscience, Madison wrote: "Who does not see ... that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?"
No Court in American history has questioned that the Establishment Clause bars tax support for religious bodies. Because it is so central to our system, in fact, the Warren Court carved out a special cause of action for taxpayers who can show that tax money is being directly sent to religious organizations. Taxpayers ordinarily have no "standing to sue" to prevent tax money from being spent in ways that they think are unconstitutional—for example, to finance undeclared wars, or welfare programs they allege violate "states’ rights." If they can show that their money is being given directly to churches, however, they do have standing. Standing depends on an actual, direct injury to the plaintiff; the direct use of tax money by churches injures—violates the rights of conscience of—any taxpayer who objects.
But that’s the rub. For the past 30 years, the Court has been quite friendly to cooperation between government and religion; and over the years, it has established a principle that should apply in the contraceptive-mandate cases. That principle is this: When government directly funds religion, the Establishment Clause is violated; but when government gives benefits to individuals, and the individuals pass on the benefit to religion, no dissenter is injured, so there’s no violation.
This principle was first applied in 1986 when a blind student sought to use state rehabilitation funds to study for the ministry. The Court found no violation of the U.S. Constitution. The student’s use of the aid was just the same as an state employee’s decision to spend a paycheck: "a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary."
Because "any aid ... that ultimately flows to religious institutions does so only as the result of the genuinely independent and private choices of aid recipients ... the decision to support religious education is made by the individual, not by the State," the opinion explained.
By 2000, the Court decided that federal funds didn’t need even to go through private hands—they could flow directly from the state to religious schools to purchase textbooks and classroom equipment. Justice Clarence Thomas explained that under the Louisiana program at issue, each school got aid based directly on the number of students it enrolled. The parents’ choice of school was independent, and thus "it is the students and their parents—not the government—who, through their choice of school, determine who receives" the government funds.
The Roberts Court reaffirmed and extended this rule as recently as 2011 in Arizona Christian School Tuition Organization v. Winn. Arizona passed a statute allowing taxpayers to take a $50 tax credit for donations to "tuition organizations." Each organization funds scholarships for students to attend private schools, and an organization can choose to fund scholarships only at particular religious schools.
No problem here, Justice Anthony Kennedy briskly asserted. The program’s "contributions result from the decisions of private taxpayers regarding their own funds .... [T]he tax credit system is implemented by private action and with no state intervention. Objecting taxpayers know that their fellow citizens, not the State, decide to contribute and in fact make the contributions." Some Arizona taxpayers might object, on grounds of conscience, to the diversion of funds from tax coffers to Christian schools; but those taxpayers had suffered no injury at all—the Court dismissed the case for lack of "standing to sue."
It’s a pretty powerful strand of precedent. Even public benefits flowing directly to religion, the Court has repeatedly held, do not violate the religious rights of citizens—if they flow because of private decisions by other citizens. As the Court reasoned in the blind-student-scholarship case, these are precisely the same as if public employees take their wages and donate them to churches. It’s nobody else’s business.
If the Court cares for consistency, that logic is another nail in the Hobby Lobby coffin. Many taxpayers, religious and non-religious, object deeply to government aid to Christian schools, but legally, their outraged consciences are not injured by government funding that flows to those schools as a result of "independent choice."
The reverse should apply. The insurance benefits that Hobby Lobby objects to are payment for work just as clearly as wages are. Hobby Lobby does not pay for abortion drugs; it pays for an insurance policy. Neither the government nor the employer controls what an employee does with the benefits from that policy. Some will choose not to use contraception—conscience protects that private, intimate choice. Others will choose to use the benefits they have earned to pay for contraception they have a constitutional right to use.
Why is Hobby Lobby injured if the taxpayers in the Establishment Clause cases are not? The employee is making an independent choice also, one dictated by her individual conscience, and the employer, in a just society, can no more veto it than it can tell the employee what churches it can donate to.
That’s not my rule; it’s the Court’s. And if the conservative majority now says that Hobby Lobby actually can dictate to its employees, they will look like hypocrites.
That’s because to assert a right to control employees’ private choice will be to hold that religious people—or, even more ominously, some favored religious people—are more easily injured than others, that their free-exercise rights trump those of their employees. The Court has insulated benefits to religion from veto by objecting citizens; now the religious want the right to veto on religious grounds benefits that flow to others. All consciences are equal; but some are thus more equal than others.
I have spent a significant part of my career studying questions of religious freedom and I’m sympathetic toward those wrestling with the conflict between conscience and the law. The Religious Freedom Restoration Act, which the challengers in these cases rely on, is an important piece of legislation, but it is aimed at balancing these two demands, not elevating religious claims above any others. It cannot reasonably be read to allow businesses to bluff their way out of commercial regulation. If stretched to fit this extravagant claim, it will destroy itself and discredit religious liberty as it does.
The better rule is that the laborer is worthy of her hire. Like the owner of the vineyard in the Gospel of Luke, she has every right to say, "Is it not lawful for me to do what I will with mine own?"