Conscience is So Overrated

November 7, 2013
Guest Post
by Leslie C. Griffin, William S. Boyd Professor of Law at UNLV Boyd School of Law
Yet another appeals court has issued an opinion about a for-profit corporation’s challenge to the contraceptive mandate of the Affordable Care Act. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. This time, the D.C. Circuit ruled in Gilardi v. HHS that the Gilardis, two Catholic brothers who own Freshway Foods and Freshway Logistics and oppose contraception, sterilization and abortion, are entitled to a preliminary injunction because they are likely to succeed on their claim that the mandate violates their free exercise rights as well as the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” The D.C. Circuit’s action is consistent with the Tenth Circuit’s ruling that the arts-and-crafts chain Hobby Lobby demonstrated that the mandate substantially burdened its exercise of religion, but at odds with rulings against secular, for-profit companies and for the government by the Third and Sixth Circuits.
One aspect of Gilardi is distinctive. Although the Third and Sixth Circuits, ruling for the government, decided that for-profit, secular corporations cannot exercise religion under either the Free Exercise Clause or RFRA, the Tenth Circuit, in support of Hobby Lobby, determined that such corporations are persons who can exercise religion under RFRA. The D.C. Circuit offered a hybrid. Although two judges – Janice Rogers Brown and A. Raymond Randolph – ruled that the Freshway Companies are not persons under either the Free Exercise Clause or RFRA, they nonetheless held that the Gilardis could bring suit because the Freshway Companies are closely held corporations with only the two brothers as owners and shareholders. In that context, the court decided, the brothers suffered a concrete and personal injury and could likely prove that their religion was substantially burdened by the mandate.
The diverse circuit court rulings risk turning the contraceptive mandate issue into a debate over corporate form and institutional rights. If corporations engage in speech under the First Amendment – Citizens United – why can’t they exercise religion?
The corporate analysis misses the broader questions about conscience and free exercise. The more important point, which is recognized in Judge Harry T. Edwards’ dissent and is inchoate yet overlooked in Judge Brown’s majority opinion, is that claims of conscience should not trump the law. As the dissent wisely explained, “Through the entire history of Free Exercise jurisprudence, the Supreme Court has remained true to the principle that the Free Exercise Clause does not ensure freedom from any regulation to which a party holds a religious objection.” In other words (my words, not those of Judge Edwards), conscience does not entitle me to disregard my tax bill, ignore my Social Security obligations, send my young children to work, kill my enemies, discriminate against African Americans, or deny contraceptive insurance to my employees. As Justice Sandra Day O’Connor once wrote, “Government simply could not operate if it were required to satisfy every citizen’s religious needs and desires.”
Judge Edwards makes another valuable point that has been ignored in many RFRA cases – namely, that RFRA does not create more rights than the First Amendment protects. The statute must be interpreted to hold citizens to obey the law just as the Constitution does.
Ironically, Judge Brown’s opinion for the Gilardis provides strong textual reasons that support the dissent. Tracing the history of the First Amendment, she notes that the earliest drafts of the First Amendment “focused on the protection of conscience, rather than the ‘exercise of religion.’” Despite frequent attempts to include language about the rights of conscience in the amendment, she concludes, “in the end, it was the free exercise of religion – standing alone – that was sent to the states for ratification.” Judge Brown then cites cases interpreting the Free Exercise Clause to protect “the indefeasible right to worship God according to the dictates of conscience,” “individual liberties of religious worship,” and the fact that “people and churches [not corporations] worship.” Free exercise, not conscience. Worship, not insurance.
In other words, the First Amendment has nothing to do with business owners who want to run their corporations according to the rules of their own consciences. The Gilardis can believe what they want and worship how they like. But the Constitution does not transform their consciences into the rule of law.