Sunday, March 30, 2014

Reply to McConnell on Hobby Lobby and the Establishment Clause

Guest Blogger

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

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

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

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