by Charlotte Garden, Assistant Professor of Law and Litigation Director of the Korematsu Center for Law & Equality, Seattle University School of Law. She co-authored an amicus brief in Harris v. Quinn on behalf of more than thirty labor law professors. Follow her on Twitter @ProfCGarden.
The Supreme Court’s final week turned out to be an even bigger blockbuster than expected. Not only did the Court issue decisions in Harris v. Quinn and Burwell v. Hobby Lobby, it also gave an encore performance, exempting Wheaton College from filing with its insurance company the form required to opt out of the ACA’s contraceptive mandate. These decisions share an important characteristic: they allow some to shift the costs of their ideological or religious commitments onto workers who may disagree.
At first blush, Harris and Hobby Lobby appear to have little to do with each other: Harris is a First Amendment case about whether home health care workers could be required to pay a “fair share fee” covering their share of their union’s representation costs; Hobby Lobby is about a for-profit corporation’s right to opt out of the Affordable Care Act’s contraceptive mandate under the Religious Freedom Restoration Act (RFRA). But Harris and Hobby Lobby share a number of similarities. Both were 5-4 decisions authored by Justice Alito, and, as others have pointed out, they will both disproportionately impact women. There is an additional similarity: while the majority opinions in both cases reflect concern for the rights of religious and political objectors, they ignore the fact that the real costs of these objections could be shifted directly onto other workers with different beliefs.
In Harris v. Quinn, the Court held that home healthcare aides in Illinois have a First Amendment right to avoid paying their share of the costs that an elected union incurs in representing them. But, under Illinois law, the workers who choose not to pay are not then excluded from union representation. Instead, the union must continue to represent these workers fairly, which in turn means the union will incur tangible costs on their behalf during bargaining and while enforcing the resulting contract. As others have explained, this creates an incentive to free ride. But who pays for that free riding? It is the union that incurs the representation costs, but it is other workers who ultimately pay those costs, in the form of their own dues and fees. In other words, Harris didn’t just create a right to opt out of union activity with which one disagrees; it will also result in some workers having to pick up the financial slack left when their co-workers opt out. This is a significant extension of the law: the Court had never before found a right to opt out of costs for activities that a union is statutorily obligated to perform. (The Court previously held that union-represented workers have a right to opt out of funding union political speech, but of course unions are under no statutory obligation to engage in politics.) Yet, the workers who will bear the costs of this ruling were entirely absent from the Court’s First Amendment analysis. And, while this rule does not yet extend to traditional public sector employees, Justice Alito made clear in his opinion that he thinks it should.
Then, in Hobby Lobby, the Court held that closely held corporations can invoke RFRA in order to escape the ACA contraceptive mandate, if it is incompatible with “their” religious beliefs (really, their owners’ religious beliefs). The Court relied on the fact that the Department of Health and Human Services—the defendant in the case—could extend the accommodation it already provided religious non-profits to cover objecting corporations. (However, Thursday’s order in Wheaton College v. Burwell strongly suggested that employers are also entitled to exemption from this accommodation, if they believe that invoking it is inconsistent with their religious commitments.) Significantly, though, the Court did not order HHS to provide this accommodation. Instead, it simply observed that the agency could choose to provide it, reasoning that if it did so, the burden on Hobby Lobby’s religion would be lessened while Hobby Lobby’s employees would receive the same insurance coverage. In other words, just like in Harris, the costs of this exemption must be paid by someone—and unless HHS extends the accommodation for religious non-profits (in which case the costs will be paid by insurers, who will surely pass that cost along to other customers), workers will simply have to purchase their own contraceptive healthcare.
In both cases, the Court held that dissenters were free to opt out of costs to which they had an ideological or religious objection. But why should dissenters be permitted to impose the costs of their ideological commitments on their co-workers? Unfortunately, the Court simply ignored this question, choosing instead to protect the views of some without considering the effects of its cost-shifting for workers.