Justice Sotomayor's Protection of Religious Liberty

 Protecting Religious Liberty (Again)

Would Agree

 

In a recent order, Justice Sonia Sotomayor temporarily enjoined application of certain regulations issued by the Obama Administration to implement the so-called Affordable Care Act.  The regulations in question would require the Little Sisters of the Poor and similar organizations to pay massive fines or authorize their insurance carriers to provide free contraception to their female employees.  (There is apparently no similar requirement that employers provide contraception to male employees.)  In a brief filed with Justice Sotomayor, the Little Sisters explained that the organization's insurance carrier is itself a Catholic organization and that the regulations at issue would impose annual fines of $2.5 million on "an organization that cares for 69 elderly people and has an annual budget of $6 million."  (Lyle Dennison, of SCOTUSBLOG, has additional details about the case here.)    The Sisters argued that the requirement in question violates the Religious Freedom Restoration Act, which prohibits agencies of the U.S. Government from issuing regulations that place substantial burdens on the free exercise of  religious belief unless such burdens are narrowly tailored to serve a compelling state interest.

 

In a U.S. New and World Report blog post entitled "The Catholic Supreme Court's War on Women," one Jaimie Stiehm  claims that Justice Sotomayor's order imposed her Catholic beliefs on American women.  In particular, the post claims that  "Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence."  The post also opined that "Sotomayor's blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions."  The post also suggests that Justice Sotomayor has allied herself with other Catholic Justices who, the post says, possess a "clear religious bias when it comes to women's rights and liberties," that the result reflects "Vatican Hegemony."  The post also claims, without offering any evidence, that "meddlesome American Roman Catholic Archbishops are bound to be involved."  Such Archbishops, the post says, have a "penchant for control" whose  "principal target for years on end has been squelching women and girls."   

 

Any claim that Justice Sotomayor, the Sisters or Archbishops who may agree with the Sisters' position have thereby imposed their religious beliefs on others does not withstand even cursory analysis.  As noted above, the regulations at issue would require one Catholic organization to violate its religious beliefs by authorizing another Catholic organization to subsidize practices that violate such beliefs.  Justice Sotomayor's order simply prevented the Obama Administration from compelling the Sisters to violate their religion, thereby protecting the principle of religious liberty, recognized by RFRA, from abridgment.  RFRA, in turn, simply implemented the ancient Madisonian principle that each individual is free to determine the duty he or she owes to the Creator and that the discharge of this duty "is precedent, both in order of time and in degree of obligation, to the claims of Civil Society."  (See James Madison, Memorial and Remonstrance Against Religious Assessments)
 

Some employees of the Sisters may well wish to employ contraception.  However, neither RFRA, Justice Sotomayor's order or the Sisters have sought to prevent a single person from exercising that choice.  To be sure, the Sisters have declined to subsidize this practice, in the same way that employers fail to subsidize any number of practices. (Consider, for instance, the employer that declines to subsidize her employee's consumption of food or purchase of clothing or shelter.)  Moreover, Justice Sotomayor, applying RFRA, has prevented the Obama Administration from coercing the Sisters and other Catholic organizations to provide such subsidies.  However, as previously explained on this blog, declining to subsidize another's medical care does not "impose" one's beliefs on others simply because the refusal reflects the employer's religious beliefs.  Instead, such a refusal leaves the Sisters' employees entirely to free to purchase as much medical care of whatever sort that they wish. 
 

It should be noted that this is not the first time that Justice Sotomayor has rejected the Obama Administration's efforts to restrict religious freedom.   In Hosana Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ____ (2012), all nine Justices rejected the Obama Administration's claim that the Religion Clauses of the First Amendment do not prevent Congress from imposing ministers upon Churches against their will.  There Justice Sotomayor joined the majority opinion of Chief Justice Roberts which, among other things, criticized the Obama Administration's "remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers."   Any suggestion that Justice Sotomayor imposed her religious views in either case is equally remarkable --- and wrong.  

Update (January 28, 2014):  The Supreme Court, without recorded dissent, has itself issued an order enjoining enforcement of the statute's contraception mandate, pending resolution of the Sisters' challenge.  The order, which can be found here, provides that the Sisters and their religious insurance carrier need not comply with the new regulations, so long as they notify the Department of Health and Human services, in writing, that "they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."  The order expressly provides that the Sisters "need not use the form prescribed by the Government and need not send copies to third-party administrators."  As a result, the Sisters need not authorize their insurance carrier to provide coverage that violates the Sisters' religious belief.  Any supposed "War on Women," it seems, has become unanimous.

 

Liberty, Power and Hobby Lobby v. Sebelius

Imposers in Chief

 

 

Understood the Difference Between "Liberty" and "Power"

 

 

Ditto

 

A recent essay in Slate magazine by Dahlia Lithwick takes issues with the Tenth Circuit's decision in Hobby Lobby v. Sebelius, which invalidated, as applied to Hobby Lobby, Inc., regulations promulgated by Secretary of Health and Human Services (HHS) Kathleen Sebelius (pictured above with President Obama)  pursuant to the Affordable Care Act.  The regulations require corporations and other firms with fifty or more employees  to purchase various forms of contraception for their employees, even when purchasing such contraception violates the owners' unanimous and deeply held religious beliefs.  Like several other federal courts, the Tenth Circuit held that coercing the owners of Hobby Lobby, a closely-held corporation owned by five family members, to violate their religious beliefs in this manner contravened the Religious Freedom Restoration Act ("RFRA").   RFRA is a federal statute, the core of which prevents the Federal Government from  burdening religious liberty.    Passed after Employment Division v. Smith, 494 U.S. 872 (1990), which held that generally-applicable and neutral laws do not violate the Free Exercise Clause of the First Amendment, the statute prevents federal agencies from placing a substantial burden on the exercise of religion, even by means of a generally-applicable regulation, unless such a burden is the least restrictive means of accomplishing a compelling state interest.  In short, the statute reinstates, as against federal agencies, the standard articulated by Justices Brennan and Douglas, respectively, in opinions for the Court in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972), both of which Smith overruled.    See also Smith, 494 U.S. at 893-900  (O'Connor, J. concurring in the judgment) (endorsing the Sherbert test).   

 

Lithwick's essay repeatedly asserts that firms such as Hobby Lobby are claiming the right to impose their owners' religious beliefs on others by somehow barring their employees from using contraception.  For instance, the subtitle of the essay predicts that: "[t]he Supreme Court will soon decide if CEOs can impose their religious convictions on the people who work for them."    The piece also contends that  "[e]mployees who choose to use contraception (as 99 percent of us will do at some point) shouldn’t do so at the sufferance of their bosses."  The piece also asserts that, under the Tenth Circuit's approach:  "Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he [or she] can dictate the most intimate health decisions of his [or her] workers, whose own religious rights and constitutional freedoms become immaterial." (emphasis supplied)  In other words, Lithwick claims that Hobby Lobby's exercise of religious liberty reduces the liberty of some of its employees, with the result that the HHS regulations invalidated in Hobby Lobby actually promote liberty.

If in fact employers were coercively dictating their employees' religious beliefs,  regulations necessary to forbid such coercion would satisfy RFRA's compelling state interest test.  However, Lithwick's colorful rhetoric fundamentally mischaracterizes the question that was before the Tenth Circuit in Hobby Lobby.   For one thing, the court expressly disclaimed any reliance upon the Constitution, choosing instead to ground its decision on RFRA.  (See page 9, n. 2)    More fundamentally, Hobby Lobby's  owners do not seek to impose their beliefs on anyone or otherwise prevent their employees from using contraception.  Nor does the rationale of the Tenth Circuit's decision even remotely threaten such a result.  After all, Hobby Lobby has no power to conscript employees to work for it; nor does it have the power unilaterally to impose particular terms of employment.  Instead, its employees are members of a free society who voluntarily consent to their place and conditions of employment. (Lithwick provides no evidence that Hobby Lobby or other religiously-motivated firms have used fraud, unfair bargaining tactics or coercion to induce employees to work for them.)  In these circumstances, an employer's failure to cover a particular medical service or procedure does not "impose" the employer's convictions (religious or otherwise) on the employee any more than the enforcement of a standard deductible or co-pay is such an imposition.  Invoking such reasoning, an employer could also claim that an employee who declines to work extra hours for no pay "imposes" its will on the employer.  

 

To be sure, some employment agreements may appear less than voluntary.  For instance, a particular firm might be the only employer in a small, remote town.  Or, an employee may have remained so long at a particular firm that his or her skills may be useless elsewhere, with the result that he or she has no meaningful choice but to remain at the same employer.  In such cases the employer in question could have market power in the labor market, power that it could use to pay unduly low wages or foist on employees terms of employment that would not survive in a more competitive environment.  Even in such circumstances, however, a failure to pay for contraception would not "impose" the firm's beliefs upon its employees.   After all, failure to pay for someone else's contraception is just that; a failure to pay.  Hobby Lobby has not sought to prevent employees from using their own incomes to purchase contraception, or anything else for that matter.  Indeed, firms that do not  provide such coverage will incur slightly lower costs, realize a slightly larger net marginal product from each employee and thus pay slightly higher wages, wages that employees can use to purchase whatever they wish, including contraception.  (This is true, it should be noted, even if a firm possesses market power.  Such firms cannot both use the same power to reduce wages and impose inferior benefits.  They must choose one or the other.)  Hobby Lobby's employees remain perfectly free to purchase their own contraception.  Treating such employees as victims of coercive interference with their own liberty, religious or otherwise, stretches such concepts well beyond any useful meaning.  One might just as well claim that a Progressive employer "dictates" employees' beliefs and reduces their liberty when he or she refuses to provide free parking because he or she has a religiously-grounded objection to global climate change and commuting by car. 

Indeed, Lithwick's claim of religious coercion proves far too much.  After all, if Hobby Lobby is dictating its employees' beliefs, then so too is every firm and individual that declines, because of religious beliefs, to purchase contraception (or anything else) for someone else.  Assume for a moment that some pharmacists provide free contraception to their customers, perhaps as a loss leader, to lure them away from competing pharmacists.  Assume further that other pharmacists decline to adopt such a strategy because of their religious beliefs.  Under Lithwick's reasoning, those pharmacists who decline to subsidize their customers' use of contraceptives are "dictating" these customers' beliefs and interfering with their liberty, even though the customers remain perfectly free (as do Hobby Lobby's employees) to purchase contraceptives at market prices.  Such a claim of coercion refutes itself and incorrectly equates individual liberty with a legal right to extract financial resources from others. 

Lithwick's argument exemplifies what F.A. Hayek once characterized as the unfortunate tendency to redefine liberty as an individual's "power to do certain things," or "the effective power to do what we want," without external constraint.  See  Friedrich H. Hayek, The Constitution of Liberty, 16-20 (1960). Redefined in this way, such "positive liberty" often consists of the power to coerce others to subsidize the individual's chosen activities, whether parking or contraception.  This redefinition deprives the term "liberty" of any useful meaning, transforming normative questions about the proper scope of liberty into a policy choice between the wants and desires of competing individuals, each of whom can claim that a choice in his or her favor enhances (his or her) "liberty."  Even slave owners could (and did) claim that slavery enhanced their liberty, by increasing the slave owner's material welfare at the tragic expense of those unjustly enslaved.  Lincoln, of course, properly rejected this definition of liberty and the concomitant equation of "liberty" with power over others, calling such "liberty" the alleged right of "some men to do what they please with other men, and the product of their labor."  (See Address At A Baltimore Sanitary Fair, April  1864).  He instead preferred the right "of each man to do as he pleases with himself, and the product of his labor."

No doubt Lithwick, too, would sincerely reject the slaveowners' claim, although without invoking Lincoln's straightforward distinction between negative and positive liberty.  Still, her argument diverts attention from the real source of coercion in this context.  After all, as the Tenth Circuit held, the regulationsc hallenged in Hobby Lobby coerce some employers to violate their own religious beliefs.  That is, it is the Obama Administration, and not Hobby Lobby, that seeks to impose its views on others.  Legislative imposition of views is not ipso facto inappropriate; by its nature, laws "impose" some view on others.  However, regulations that require individuals to violate their sincerely held religious beliefs are prima facie violations of RFRA.  As shown above, such regulations do not enhance anyone's liberty, but instead extinguish it.  Absent identification of some other compelling state interest, RFRA's protection for liberty must prevail.