Hobby Lobby and the Establishment Clause: Amicus Brief

Richard Schragger, Micah Schwartzman, and Nelson Tebbe

The New York Times has an editorial endorsing the position that we and a number of other church-state scholars have taken in an amicus brief recently filed in Sebelius v. Hobby Lobby, and that we have blogged and written about previously (here, here, and here). In the brief, which was led by Fred Gedicks, we argue that a religious exemption that permits for-profit employers to shift significant costs of observing their religion to employees who do not share the same religious views violates the Establishment Clause.

As the Times editors note: "Oddly, the Justice Department has relegated to a footnote what may be the strongest single argument against allowing the two companies to deny their workers contraceptive coverage that they would otherwise be entitled to under the health care law. That would be the Constitution’s establishment clause enforcing the separation of church and state and barring government from favoring one religion over another or nonbelievers. But that is exactly what would happen if the restoration act were to be read as a congressional order requiring federal courts to grant private for-profit employers an exemption that would effectively allow them to impose their beliefs on employees to deny them a valuable government benefit."

As we have argued, the no-cost-shifting principle is a basic tenet of non-establishment in the for-profit workplace and it is reflected in an unbroken line of Supreme Court cases. If the government is able to shift the costs of otherwise generally applicable neutral burdens by granting selective accommodations, a defined class of citizens will be paying for the religious exercise of others.

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

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