BYU Law Prof. Answers Criticisms of Paper Detailing Weaknesses of Legal Challenges to Contraception Coverage

October 31, 2012
Guest Post

By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School


Fr. Robert Araujo, Professor of Law at Loyola University Chicago, and Richard Garnett, Professor of Law & Political Science at the University of Notre Dame, have posted critical reactions on Mirror of Justice to my ACS Issue Brief, “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate.”

Many of Fr. Araujo’s questions are answered in the Issue Brief, but one comment deserves a direct response. He suggests that I have elevated statutory and regulatory claims to no-cost contraception under the Affordable Care Act over more fundamental constitutional claims under the Free Exercise Clause, which he believes is violated by the mandate. One hears this free exercise rhetoric frequently from mandate opponents, but it misreads constitutional history and misunderstands the content of free exercise rights.

The Free Exercise Clause does not protect a right of believers to be excused or exempted from complying with laws that generally apply to the rest of society, even when such laws burden their religious exercise. The Supreme Court has rarely recognized rights to free exercise exemptions, and then only in a few instances between the early 1960s and the late 1980s. The Court decisively rejected a general right to free-exercise exemptions in Employment Division v. Smith (1990), which it has repeatedly affirmed in the years since, most recently in Christian Legal Society v. Martinez (2010).

Like claims to no-cost contraceptives under the mandate, claims to exemption from the mandate are also statutory, resting on the Religious Freedom Restoration Act, which prevents the federal government from “substantially burdening” religious exercise unless it does so in service to a compelling governmental interest. The question of the mandate is thus a question of competing statutory claims, not a competition of constitutional and statutory claims in which the former presumptively prevails.

Fr. Araujo and other mandate opponents are of course free to argue that Smith was wrongly decided, but this frames the question quite differently: The issue right now is whether the mandate violates the Free Exercise Clause as it actually is, not as mandate opponents wish it were.

As for Professor Garnett, he has linked to other posts in which he has laid out his position against the mandate, and readers may judge between our respective arguments. Again, however, one of his points merits a specific response. Professor Garnett is skeptical that any religious liberty interests weigh on the side of employees who do not share their employer’s anti-contraception beliefs. But part of religious liberty, and personal liberty generally, is freedom from burdens imposed by the religious exercise of others whose religious beliefs one does not share. Concern for this dimension of liberty is evident in a number of the Court’s Establishment Clause cases, notably Estate of Thornton v. Calder (1985).

The crux of the matter is this: Professor Garnett and other mandate opponents conceptualize the mandate as requiring objecting employers to subsidize the purchase of contraceptives by employees. They don’t recognize a religious liberty interest in employees because private persons (like employees) generally possess no free exercise or other right that would require other private persons (like employers) to subsidize behavior to which the latter persons object.

But “subsidy” is not the proper way to conceptualize the mandate. In one sense employers “subsidize” the purchase of contraceptives (and all sorts of other behavior) whenever they pay wage or salary compensation that exceeds the subsistence level and thus creates the possibility of discretionary employee spending. Of course, no mandate opponent would argue that, say, a minimum wage law -- even a generous one that yields discretionary spending -- “subsidizes” contraceptive use by employees who choose to buy them, and no mandate opponent would argue that religious employers have a free exercise right to prohibit employees from buying contraceptives with their wages or salary.

At the other extreme, one can imagine a law mandating an unambiguous subsidy of contraceptive use, such as a legal requirement that employers purchase vouchers good only for the purchase of contraceptives, and then distribute these free of charge to their employees.

The question is whether the contraception mandate is closer to mandated wage or salary compensation that the employee can spend as he or she chooses without employer restrictions, or a mandated contraceptive voucher which would constitute an unambiguous employer subsidy. While the benefit created by the contraception mandate is not identical to wages or salary, it is close: Mandated contraceptives constitute a benefit made available to employees through their employer health insurance plan; health insurance benefits are a form of employee compensation which, like wages and salary, employees may consume in a variety of ways as they wish, free of employer restriction. Allowing an employer to interfere in this consumption decision on the basis of the employer’s religious anti-contraception beliefs would impose the burden of those beliefs on many employees who do not share them; thereby violating the latter’s religious and general personal liberty.