Is it an undue burden on religious freedom to ensure that an individual or group’s beliefs do not impinge on the freedom of someone holding different beliefs?
What sounds like one of those conundrums designed more to inspire intellectual badinage than concrete law has become a serious and pressing question thanks to a furious week of activity at the Supreme Court.
Likely familiar to many by now is the high court’s 5-4 decision in Burwell v. Hobby Lobby, granting a private corporation the right to refuse certain forms of contraceptive coverage to its employees on the notion that providing that coverage placed an undue burden on the owner’s religious practices.
Some might have also have spotted how, just a day later, the court used their supposedly narrowly defined decision in Hobby Lobby to guide rulings on six other cases winding through the appellate courts. Those decisions — which all favored corporations and institutions seeking religious exemptions from Affordable Care Act requirements over employees seeking coverage — instantly broadened the reach of Hobby Lobby, and raised the specter of religious challenges to an expanded list of government mandates.
But many could be excused for missing the Supreme Court’s final flurry, coming as it did late Thursday, as much of official Washington, the media, and wide swath of America embarked on a long July 4th holiday weekend.
In an unsigned decision, the court granted an injunction to Wheaton College, a private, Christian liberal arts college in Illinois, allowing the institution to continue to avoid compliance with the ACA, pending a full review of its case. At stake, whether Wheaton should be required to fill out a form certifying that it was denying its employees contraceptive coverage as part of a mandated health plan (filing the form would allow the federal government to step in with supplemental coverage), and if the school refused, whether it would be subjected to fines for not providing what the health care law calls “minimal essential coverage.”
The injunction, as noted, had no names attached, but three justices were out loud and proud in their dissent. Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan (yes, that would be the entire female population of the court), wrote:
Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position.
In other words, the self-ascribed narrow scope of the Alito decision in Hobby Lobby has already been shown to be not so narrow. In Wheaton, and in some of the six other rulings on pending cases made earlier in the week, entities other than just “closely held” corporations are in play. So are organizations that object to all forms of preventative services, not just the types of contraception Hobby Lobby erroneously believed were abortifacients. And, in at least one case, Eden Foods, there is an employer who claims it poses an undue burden on his religious liberty when the government requires him to buy anything for his employees, be it “Jack Daniel’s or birth control.”
Troubling, too, to the dissent, was that the Alito decision gave Hobby Lobby bosses a pass because the federal government had a workaround where entities would certify their refusal to provide contraception coverage, allowing the government to step in. But if the premise of Wheaton’s objection (and the contention in a similar case brought by Catholic charity Little Sisters of the Poor) holds, that workaround is invalid. And if the government crafts another compromise in an attempt to deliver services to people who have the misfortune of working for a company or organization that seeks to impose its religious beliefs across its workforce, and religious groups again find it a burden, that compromise will also face injunction.
If that sounds like too slippery a slope, well, it’s not up to you. As Alito wrote in his Hobby Lobby decision, “It is not for us to say that their religious beliefs are mistaken or insubstantial” — meaning it is not for the government and not for the courts, but the decision of the holder of any religious beliefs as to whether a law is burdensome. If a college or a charity thinks that simply filing paperwork contradicts their religious principles because it would allow employees to seek contraception elsewhere, so be it. If a company’s owner thinks that requiring anything — from health coverage to equal pay to safe working conditions — violates sincere religious beliefs, well then, it does. It’s not for the government, the courts, or, it seems, the directly affected employees to say otherwise.
Personal liberty, it seems, is not the same thing as religious liberty, and in the eye of the Roberts Court, it is not as important, either. If protections guaranteed under a law feel burdensome to your employer — on account of religious beliefs, of course — your employer does not have to provide those protections, thanks to the expanded reach of the Religious Freedom Restoration Act now affirmed by the Supreme Court.
Or so it appears to many court watchers. There are those who will cling to the “one time only” language in the Hobby Lobby decision and possibility for endless compromise on behalf of the government — and this will all no doubt be litigated for years to come — but the facts on the ground are the facts on the ground. And right now, the facts are that hundreds of Wheaton employees and potentially thousands upon thousands of people nationwide do not have — and have no good promise of access to — medical services deemed legal and essential by Congress and the courts.
The interpretation of the law, after all, isn’t just about academic institutions, and it isn’t just academic — for most of working America, it’s the law.