Wednesday, November 27, 2013

The Establishment Clause and the Contraception Mandate

Guest Blogger

Micah Schwartzman, Richard Schragger, and Nelson Tebbe

Yesterday the Supreme Court granted certiorari in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, which ask whether large, for-profit corporations and their religious owners can assert rights of religious free exercise under the Religious Freedom Restoration Act (RFRA), and, if so, whether their rights are violated by the government’s requirement that they pay for health insurance that includes coverage for various forms of contraception.

So far, the five circuit courts that have decided these questions – including the lower courts in Hobby Lobby and Conestoga Wood – have focused exclusively on two main issues: (1) who can assert claims for religious exemptions under RFRA, and (2) whether those claims are likely to be meritorious given RFRA’s requirement that courts apply strict scrutiny to laws that substantially burden religious exercise.

But as we argued yesterday in Slate, the contraception mandate litigation, and the media coverage of it, is not presenting the full range of arguments. The courts and the litigants have failed to consider a serious Establishment Clause challenge to exempting large, profit employers from the contraception mandate.

In a line of cases going back decades, the Supreme Court has held that the government may not grant religious exemptions when doing so would impose significant burdens on third parties who are not beneficiaries of the religious accommodation. An important case is Estate of Thornton v. Caldor, which involved a Connecticut statute that provided employees with an absolute right not to work on the Sabbath day of their choosing. Although the law was passed to accommodate religious employees after the state revised its Sunday closing laws, the Court nevertheless found that it violated the Establishment Clause.

Writing for an 8-1 majority, Chief Justice Burger explained that under the statute, “religious concerns automatically control over all secular interests at the workplace; the statute takes no account of the convenience or interests of the employer or those of other employees who not observe a Sabbath” (472 U.S. 703, 709 (1985)). Because the exemption did not account for the secular interests of employees, it “contravenes a fundamental principle of the Religion Clauses.” To express that principle, Chief Justice Burger quoted Judge Learned Hand, saying: “The 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” (472 U.S. at 710).

Although the courts have so far ignored it, and as Frederick Gedicks and Rebecca Van Tassell argue in a recent and important article, the same principle applies in the contraception mandate litigation. If courts interpret RFRA to grant a statutory exemption for large, for-profit, religious employers, the primary effect will be to give those religious employers an absolute right to shift the costs of providing contraceptive coverage onto their female employees, as well as male employees whose wives or daughters are covered under their plans. And just as in Caldor, “religious concerns [would] automatically control over all secular interests,” and in a manner that imposes significant costs on employees.

Caldor stands for the proposition that the government may not grant religious exemptions when they impose significant burdens on non-beneficiaries. The Supreme Court has repeatedly affirmed that principle. Most recently, in Cutter v. Wilkinson, the Court upheld the Religious Land Use and Institutionalized Persons Act (RLUIPA) against a facial challenge under the Establishment Clause. Although RLUIPA’s subject matter is more constrained than RFRA’s, both laws require courts to apply strict scrutiny to laws that burden religious exercise. In Cutter, a unanimous Court relied explicitly on Caldor to hold that in applying RLUIPA, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries” (544 U.S. 709, 720 (2004)). To do otherwise would be to violate the Establishment Clause.

The Establishment Clause principle expressed in Caldor and Cutter constrains how RFRA may be applied to grant exemptions to large, profit religious employers. If those exemptions impose substantial burdens on employees, then courts must reject them as violations of the Establishment Clause.

In subsequent posts, we will consider some objections to this as-applied Establishment Clause challenge. For now, though, we want to ask:  Why hasn’t this argument been made in the courts?

One answer points to the way in which the existing cases have been litigated. All of them involve large corporations and their religious employers raising challenges to federal regulations. There are no cases in which employees have intervened to defend their statutory rights and to challenge preliminary injunctions that threaten to impose significant costs on them. The lack of employee participation in these cases is understandable. It is risky to sue your employer, even if you have a strong constitutional basis for your claim. But because employees are not involved, we have not yet heard directly from those with the strongest interest in advancing an Establishment Clause challenge in these cases.

That leaves the question:  Why hasn’t the federal government raised this claim? Our answers here are speculative. Perhaps the government’s lawyers did not want to argue that application of a federal statute, RFRA, is unconstitutional, even as-applied. Or perhaps the government thinks that employees’ claims are subsumed within its defense of the mandate as justified by a compelling interest in guaranteeing access to contraception. Whatever the case, however, the fact remains that no court has given a full hearing to these arguments. As a result, this litigation is heading up to the Supreme Court prematurely. These cases take the form of Corporation v. Government, where all the attention is on the free exercise of religion. We are missing Employee v. Corporation and Employee v. Government, and all of the burden-shifting arguments that would be developed in those cases.

Those Establishment Clause arguments are powerful, and they deserve a hearing. 

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

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

Nelson Tebbe is Professor of Law at
Brooklyn Law School. You can reach him by e-mail at nelson.tebbe at

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