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 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