Nelson
Tebbe, Richard Schragger, and Micah Schwartzman
On
Thursday, Michael McConnell offered his current thoughts on the Hobby Lobby
case. His post addresses a range of issues including the question that has
been our focus, namely, whether accommodating the religious beliefs of Hobby
Lobby’s officers would impermissibly shift burdens onto female employees in
violation of Establishment Clause values. Though the burden-shifting
argument started at the periphery of this case, it is now a central issue
before the Supreme Court. The government emphasized this point in its briefs,
and Solicitor General Verrilli raised it during oral argument, responding directly to a number
of the Justices’ concerns about the effects that an exemption would have on
employees. That Professor McConnell is also concerned with refuting the argument
is some indication of how important it has become over the course of this
litigation.
As
we have explained, a longstanding nonestablishment
principle holds that the government may not lift a statutory burden on
religious believers when doing so would shift that burden onto third parties
who do not share those beliefs. In Estate of Thornton v. Caldor, the
Court explained that “[t]he First Amendment . . . gives no one the right to
insist that, in pursuit of their own interests, others must conform their
conduct to his own religious necessities.” In that case, a statute gave
employees an absolute right not to work on the Sabbath day of their choosing.
Because the statute imposed significant costs on employers and other employees,
the Court held that it “contravene[d] a fundamental principle of the Religion
Clauses.” The Court reaffirmed that principle in Cutter v. Wilkinson,
where a unanimous Court relied explicitly on Caldor to hold that courts applying
a statute similar to RFRA “must take adequate account of the burdens a
requested accommodation may impose on nonbeneficiaries.”
And
in United States v. Lee, the Court refused to grant a free exercise
exemption to an Amish employer who claimed a religious objection to social
security taxes. The Court held that “[w]hen followers of a particular sect
enter into commercial activity as a matter of choice” they accept limits on
their activity that cannot be lifted where doing so would “impose the employer’s
religious faith on the employees.” Congress later adopted a legislative
accommodation for Amish employers, but only in cases where their employees
shared their religious beliefs.
It
is surprising that Professor McConnell does not address any of these
authorities in his post. Instead, he rejects the principle that burden-shifting
accommodations raise constitutional problems, arguing that religious
accommodations frequently impose burdens on third parties. Yet the
examples he gives to support this claim do not involve the sorts of
burden-shifting that raise constitutional concerns.
Consider
the exemption from the draft for people conscientiously opposed to war in all
forms—what Professor McConnell calls “the most venerable of all religious
accommodations.” McConnell argues that the exemption for conscientious
objectors shifts burdens to other draftees. But that law does not involve a
direct and identifiable substitution of a nonobjector for an objector, as in Hobby Lobby. And regardless, the
exemption in the draft cases does not raise Establishment Clause concerns
because it does not favor religion. In fact, as Marty Lederman has pointed out, the Supreme Court interpreted
the draft exemption to cover all objectors precisely
because limiting it to religious people would raise Establishment Clause
concerns, according to the best and most common interpretation of its decision.
So that example actually cuts against
Professor McConnell’s argument, not in favor of it.
McConnell’s
other examples are equally unavailing. He says that Title VII’s requirement
that employers accommodate their employees’ religious beliefs shifts burdens to
the employer and to other employees. But he does not cite TWA v. Hardison,
where the Court held exactly for that
reason that the employer’s obligation to accommodate religious employees is
limited to situations where doing so would impose no more than a “de minimis”
cost on employers. The Court reasoned that “requir[ing] [the employer] to bear
additional costs when no such costs are incurred to [benefit other employees]
would involve unequal treatment of employees on the basis of their religion.”
Staying
within the employment context, Professor McConnell invokes Hosanna-Tabor,
where the Court exempted a religious school from employment discrimination law
for a decision to terminate a minister. But that case concerned a core issue of
church autonomy, namely the relation between a congregation and its spiritual
leaders. As we have explained, that doctrine is specific to
churches and some religious nonprofits. Although we have reservations about the
rule of Hosanna-Tabor, it does not extend to employees other than
ministers, nor does it apply to for-profit corporations like Hobby Lobby.
Allowing religious associations to choose clergy free of certain
antidiscrimination laws protects core associational values while imposing
minimal burdens on people of other faiths, who are unlikely to seek employment
as leaders of churches. An exemption that permitted a for-profit employer to
discriminate against any employee on those grounds would not only be contrary
to Title VII, but would raise serious Establishment Clause concerns.
Professor
McConnell also cites Lukumi and O Centro, concerning free
exercise and RFRA, respectively. Lukumi is inapposite because it did not
involve a religious accommodation at all. There, the town’s ordinance was
unconstitutional because it impermissibly targeted practitioners of Santeria.
After the Court’s decision, the statutory prohibitions on killing of animals
were lifted for everyone, not just for religious actors. Therefore, the case
raises no Establishment Clause concerns. O Centro does not help
Professor McConnell either. In that case, involving the use of banned
substances for religious rituals, the government failed to carry its burden of
showing that the risk of diversion for recreational use amounted to a
compelling interest. Moreover, the Court noted that an equivalent exception for
ritual use of peyote had been in place for 35 years without Congress repealing
it because of abuse or harm to third parties. Yoder, another case cited by Professor McConnnell,
is distinguishable as well. The Yoder
Court did not accept that exempting Amish families from compulsory schooling
would burden their children. In fact, it expressly rejected that assertion.
Although the government argued that children removed from public school would
be “ill-equipped for life,” the Court called that contention “highly
speculative.”
Probably
Professor McConnell’s best argument is that employees are not burdened because
they are not entitled to coverage for contraception in the first place. If the
ACA is read together with RFRA, he suggests, employees of Hobby Lobby do not
experience a burden when they lose coverage. This is the baseline question that
we addressed at greater length elsewhere. Here we simply note that the
Court has rejected Professor McConnell’s view. In Lee, the Court did not
read the Social Security Act together with the Free Exercise Clause (pre-Smith), figuring that employees could
not be burdened because they were not entitled to benefits in the first place. On
the contrary, the Court held that the Social Security Act shifted the baseline
of benefits by imposing statutory obligations on employers, and it therefore
concluded that granting an exemption to the religious employer would
impermissibly shift burdens to its employees. If RFRA deprives only Hobby Lobby
employees of contraception coverage, they will lose an entitlement that
continues to be enjoyed by virtually all other women, including those working
for religiously-affiliated nonprofits. The most sensible understanding of that
situation is that it would shift the burden of providing contraception coverage
from employers with religious objections to their female employees in violation
of a basic and longstanding nonestablishment value.
McConnell
closes by saying that “[t]he political dynamics of this
case have attracted extraordinary attention, but the Supreme Court is a court
of law, not of politics.” Our argument has proceeded on the same assumption, and
that is why it is important for the Court to consider all of the relevant legal
principles, including those that protect the rights of employees not otherwise
represented in this litigation.
Nelson Tebbe is Professor of Law at
Brooklyn Law School. You can reach him by e-mail at nelson.tebbe at brooklaw.edu
Richard C. Schragger is Perre Bowen Professor Barron F. Black Research Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schragger at virginia.edu
Micah J. Schwartzman is
Edward F. Howrey Professor of Law at
the University of Virginia School of Law. You can reach him by e-mail at schwartzman at virginia.edu
Brooklyn Law School. You can reach him by e-mail at nelson.tebbe at brooklaw.edu
Richard C. Schragger is Perre Bowen Professor Barron F. Black Research Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schragger at virginia.edu
Micah J. Schwartzman is
Edward F. Howrey Professor of Law at
the University of Virginia School of Law. You can reach him by e-mail at schwartzman at virginia.edu