Thursday, October 16, 2014

Update on the Establishment Clause and Third Party Harms: One Ongoing Violation and One Constitutional Accommodation

Guest Blogger

Nelson Tebbe, Richard Schragger, and Micah Schwartzman

It is well known that the Obama Administration has taken up the Supreme Court’s invitation to ensure full contraception coverage without cost sharing for the employees of Hobby Lobby and similar companies with religious objections. What is less commonly appreciated is that Hobby Lobby’s own employees almost certainly are not receiving that coverage—right now. Consequentially, federal law is accommodating religious objectors to the contraception mandate by shifting that burden to third-party employees in violation of the Establishment Clause, at least at the moment. But not every religious accommodation shifts significant costs to third parties. A second case before the Court proves that point: Holt v. Hobbs involves an accommodation of belief that is perfectly constitutional, as we will explain.

Although the Administration aims to cover Hobby Lobby’s employees, it has promulgated only a notice of proposed rulemaking, which will not be effective at least until after a sixty-day period of notice and comment, and perhaps longer. Because the mandate in the Hobby Lobby litigation has already been issued, that means no entity is currently under any obligation to provide coverage for the forms of contraception to which the company objects on religious grounds. Assuming Hobby Lobby is acting on its strenuous objection to providing that coverage, its employees currently are not covered.

What is more, the Supreme Court’s own doctrine prohibits the Administration’s regulations, once they are final, from covering Hobby Lobby’s employees retroactively. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). Agencies cannot require health insurers or third-party administrators to compensate employees for the cost of the contested forms of contraception after the fact.

So when the Supreme Court said in its opinion that the Administration could extend a religious accommodation and that the effect on Hobby Lobby employees would be “precisely zero,” the Court was wrong—its employees are likely being denied coverage right now. Although that gap is probably temporary, it could result in serious, irreversible financial and personal harm to women.

As we have previously explained, and as others have argued in editorials, in an amicus brief, and in an important law review article, longstanding Establishment Clause doctrine prohibits the government from accommodating religious actors when that means shifting significant burdens to third parties who may not share those beliefs. Although a footnote in the majority opinion in Hobby Lobby contains troubling language that could sweep aside this established principle of constitutional law, the Court ultimately declined to reach the issue, saying that “[i]n any event, our decision in these cases need not result in any detrimental effect on any third party. . . . the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees.”

Moreover, Justice Kennedy, whose vote was essential to the five-Justice majority, wrote separately and emphasized the importance of avoiding harm to third parties when accommodating religion: “Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand . . . .” Putting Justice Kennedy’s view together with those of the four dissenters, who emphasized the prohibition on burden shifting in religious accommodations, there are five votes on the Court for the proposition that depriving Hobby Lobby’s employees of contraceptive coverage because of the company’s religious objection violates the Establishment Clause. And that is exactly what is happening right now.

It is imperative that the Administration work quickly to ameliorate this constitutional violation, and that the final regulations contain adequate safeguards to ensure that women are provided full coverage for contraception without gaps or delays.

Not every accommodation of religion runs afoul of the Establishment Clause, however. The Court recently heard arguments in Holt v. Hobbs, where a Muslim inmate who wishes to grow a beard for religious reasons in violation of prison grooming regulations has brought a religious freedom challenge. The federal statute that Gregory Holt is invoking is a cognate of RFRA, the law at issue in Hobby Lobby—its substantive provisions are virtually identical, though it only applies in the context of prisons and land use. And Holt rightly appeared to draw the sympathy of a robust majority of the Justices at oral argument, because the costs of allowing him to grow a half-inch beard are low.

Although allowing Holt to grow a beard for religious reasons may impose some administrative burden on the state, there is virtually no evidence that accommodating his faith would shift any burden at all to third parties who do not share his beliefs—such as other inmates. The state’s assertions of security risks resulting from prisoner beards are unsupported—and at least one of them likely was fabricated. (For Arkansas’s admission of error, see this letter.) Professor Douglas Laycock rightly argued to the Justices that state officials “have no examples of anything hidden in beards, and certainly not in a very short beard, such as half an inch.” Saying, as the state did, that a short beard presents a security risk when hair on the top of the head is allowed to be much longer under prison policies is, as Laycock put it at oral argument, “not even rational.”

Holt v. Hobbs should illustrate not only that many religion accommodations will not raise Establishment Clause issues, but also those who object to the Court’s opinion in Hobby Lobby are not necessarily opposed to religion or to accommodations of religion. The Court should and will rule in favor of Gregory Holt. Hobby Lobby has sparked a debate that is not primarily about the wisdom of religious accommodations as such—it chiefly concerns the Court’s radical reworking of those accommodations.

Nelson Tebbe is Professor of Law at

Brooklyn Law School and Visiting Professor of Law at Cornell 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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