Religion rules

An appeals court has ruled that the contraception mandate in Obamacare does not apply to companies with a few religious owners:

Writing for the majority, Judge Janice Rogers Brown wrote that the mandate ‘‘trammels the right of free exercise — a right that lies at the core of our constitutional liberties — as protected by the Religious Freedom Restoration Act.’’

Brown, an appointee of President George W. Bush, said that the mandate presented the Gilardis with a ‘‘Hobson’s choice: They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong.’’

I’m going to farm out my response to Judge Edwards in his dissent:

There are three reasons why the Mandate does not substantially burden the Gilardis’ “exercise of religion.” First, the Mandate does not require the Gilardis to use or purchase contraception themselves. Second, the Mandate does not
require the Gilardis to encourage Freshway’s employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages. Finally, the Gilardis remain free to express publicly their disapproval of contraceptive products.

Because the Mandate does not require the Gilardis to personally engage in conduct prohibited by their religious beliefs, this case differs from every case in which the Court has found a substantial burden on religious exercise. In
O Centro and Yoder, for instance, there was no dispute as to whether the regulations substantially burdened the plaintiffs’ religious exercise. The disputed Government policies in those cases very plainly prevented the plaintiffs, personally, from engaging in their religious practices (using hoasca and homeschooling one’s children), and the only question was whether the burdens were justified.

In contrast, the Gilardis cannot claim that they are being forced to use contraceptives, which would directly conflict with their religious beliefs. Rather, they complain that because their companies are required to purchase insurance
that includes coverage for contraception, they as owners are enabling third parties to engage in conduct that they oppose. This is a specious claim. The Gilardis can find no support for their position in the controlling case precedents. No Free Exercise decision issued by the Supreme Court has recognized a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.

Furthermore, the Mandate does not require the Gilardis to directly facilitate employees’ use of contraception. The Gilardis do not contend that their religious exercise is violated when Freshway pays wages that employees might use to
purchase contraception, and the Mandate does not require the Gilardis to facilitate the use of contraception any more directly than they already do by authorizing Freshway to pay wages. Amici supporting the Gilardis’ position attempt in vain to distinguish between the Mandate and paying wages. First, they argue that the Mandate requires the Gilardis to become an “essential cause” of increasing the number of employees who use contraception. But the Gilardis are no more of an “essential cause” of increasing the use of contraception when they authorize Freshway to pay for a benefits plan that employees might use to get contraception than they are when they authorize wages that an employee might use to purchase contraception she would not otherwise be able to afford.

Amici also attempt to distinguish between the Mandate and paying wages by arguing that covering contraceptive products is akin to the difference between giving an underage person a “gift certificate” to buy beer, and giving him money that he might spend on beer.  But this analogy fails. Health coverage under the Mandate is not like giving a gift certificate to buy beer specifically, but more like a gift certificate to a supermarket where the recipient may purchase whatever is available, including beer. Just as the Government does not directly encourage religion when it provides vouchers that recipients may choose to spend on religious schools, the Gilardis do not directly encourage the use of contraception when they provide insurance coverage that recipients may choose to spend on contraceptives. Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) (“The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the [party granting the benefits], whose role ends with the disbursement of benefits.”).

Finally, the Gilardis suggest that because Freshway is required to offer health insurance that includes contraception, they as owners are being pressed to effectively endorse the use of contraception. This claim fails because the Supreme Court has held that a party’s First Amendment rights are not violated when he must comply with a Government policy that sends a message contrary to his beliefs. Hence, an institute of higher education may be required to host military recruiters on campus, even if it strongly opposes military policy. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006). Parties who comply with a regulation contrary to their beliefs “remain[] free to disassociate [themselves] from those views.” Id. at 65 (citation omitted). The Gilardis likewise remain free to “disassociate” themselves from any message that might suggest that they endorse contraception. They may denounce publicly the use of contraception, for instance, by issuing a statement to Freshway’s employees expressing their disapproval of the Mandate and contraception; and they are free to continue authorizing Freshway to display slogans on company delivery trucks expressing their views about the sanctity of human life. There are countless ways the Gilardis can make clear that their involuntary compliance with federal law does not signify that they endorse the use of contraception. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012) (“Nothing in these final regulations precludes employers or others from expressing their opposition, if any, to the use of contraceptives, requires anyone to use contraceptives, or requires health care providers to prescribe contraceptives if doing so is against their religious beliefs.”).

See here for more about Judge Brown who authored the decision.

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