Two years ago, I wrote a series of posts criticizing E.J. Dionne and other progressive men for urging the continued accommodation of religious organizations engaged in secular activity by the Obama Administration. In an earlier post I wrote:
Consider this possibility -- what if the Catholic bishops say that since their employment of persons is the means by which persons are eligible for birth control under the Obama accommodation, then they should have the right to prohibit their employees from getting contraception care? How can Dionne distinguish this "religious liberty" claim from the one he is arguing in favor of? There is no logical difference in the positions.And here we are, facing precisely this argument before a Supreme Court which seems eminently capable of agreeing and accepting this argument. On the other side, I will discuss the legal issues raised in the cases to be argued on Tuesday.
A progressive would understand this and not argue for a "religious liberty claim" that a religion should have "the right to deny even its employees of other faiths the health-care services of which it doesn't approve on strictly doctrinal grounds." Yet this is what Dionne is arguing for. It is a betrayal of progressive values.
Please read below the fold for more on this story.
In its moving brief (PDF) in Hobby Lobby, the government describes the issues as follows:
The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq., provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1(a) and (b). The question presented is whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are other wise entitled by federal law, based on the religious objections of the corporation’s owners.The government notes that:
The implementing regulations [of the Affordable Care Act] authorize an exemption from the contraceptive-coverage provision for the group health plan of a “religious employer.” 45 C.F.R. 147.131(a). A religious employer is defined as a non-profit organization described in the Internal Revenue Code provision that refers to churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order. Ibid. (cross-referencing 26 U.S.C. 6033(a)(3)(A)(i) and (iii)).Thus the issue is not about Catholic hospitals or charities, churches, religious orders or anything like that. It is, pure and simple, about owners of a for-profit corporation seeking exemption from secular laws that they believe conflict with their PERSONAL religious faith.
The implementing regulations also provide accommodations for the group health plans of religious non-profit organizations that have religious objections to providing coverage for some or all contraceptive services. 45 C.F.R. 147.131(b). After such an organization accepts an accommodation, the women who participate in its plan will generally have access to contraceptive coverage without cost sharing though an alternative mechanism established by the regulations, under which the organization does not contract, arrange, pay, or refer for contraceptive coverage. 78 Fed. Reg. 39,870, 39,872, 39,874-39,886 (July 2, 2013).
The owners of Hobby Lobby and Conestoga Wood argue that certain requirements of the Affordable Care Act upon employers of 50 or more persons are in conflict with their religious faith and thus violate RFRA. The government describes the argument thusly:
[the Hobby Lobby parties] contend that the requirement that the Hobby Lobby group health plan cover all forms of FDA-approved contraceptives as prescribed by a physician violates rights of the corporations and the Greens under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1(a) and (b). Specifically, respondents contend that RFRA entitles the Hobby Lobby plan to an exemption from the contraceptive-coverage provision because the Greens object to “facilitating” coverage of four FDA-approved contraceptives (two types of IUDs and two emergency contraceptives, Plan B and ella). Pet. App. 14a.4The government responds by first denying that for-profit corporations can exercise religion for RFRA purposes:
Granting the relief respondents seek for profitmaking corporate entities engaged in commercial activity would expand the scope of RFRA far beyond anything Congress contemplated; would disregard deeply engrained principles of corporation law that should inform the interpretation of RFRA as they do federal statutes generally; and would deny to thousands of employees (many of whom may not share the Greens’ religious beliefs) statutorily-guaranteed access to benefits of great importance to health and well-being.Under traditional corporation law, the corporation is treated as a separate legal entity whose actions do not legally reflect upon the shareholders or officers of the corporation. Thus, under this analysis, the corporation does not act as the shareholders. The most common manifestation of this principle is that the acts of the corporation do not create liability for the shareholders or officers of the corporation. They are, in the eyes of corporation law, completely distinct and separate entities. The government states:
[Hobby Lobby's] RFRA claim fails [as] it attributes the religious beliefs of the corporate shareholders to the corporate respondents themselves. That approach violates the long-settled principle of corporation law (against the backdrop of which RFRA was enacted) that “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163A related argument made by Hobby Lobby is that the ACA violates RFRA by impinging on the exercise of religion by the owners of the corporation. The government responds:
Respondents’ alternative suggestion that the Greens [the owners of Hobby Lobby] may challenge the contraceptive-coverage provision in their individual capacities likewise suffers from threshold defects. The challenged provision imposes no personal obligations on the Greens; it instead regulates only the corporations they own and the group health plan the corporations sponsor. The provision therefore does not burden the Greens’ individual exercise of religion in any cognizable sense, and RFRA does not entitle them to an exemption for the corporations based on their individual religious beliefs.This is the mirror image of the previous argument, the individuals are not the corporation, and the corporation is not the individuals.
The government further argues that even if the ACA requirements were attributable and impactful on the individual religious exercise of Hobby Lobby's owners, the ACA provisions do not impose a substantial burden on such exercise of religion:
The particular burden about which respondents complain also does not qualify as a substantial burden within the meaning of RFRA. A group health plan covers many items and services, and participants and their dependents, in consultation with their health care providers, decide which ones to use. Those decisions by independent third parties are not attributable to the employer that finances the plan or to the individuals who own the company, and the connection is too indirect as a matter of law to impose a substantial burdenFinally, the government addresses Hobby Lobby's rather ironic request that the government provide the disputed contraceptive care directly:
Respondents’ [...] proffered alternative—direct government provision of contraceptive services to corporate-respondents’ employees—is not a less restrictive means within the meaning of RFRA. The less-restrictive means test under RFRA cannot be used to require creation of entirely new programs. Moreover, in both the preventive-services coverage provision and the Act generally, Congress built upon the system of employment-based coverage and private insurance, rather than replacing it with government-provided benefits. Respondents’ proffered alternative would conflict with that goal. [Emphasis supplied.]It's rather funny that Hobby Lobby argues that the answer is government-offered health insurance and care. Certainly many of us agree that this would be good policy, but surely it is not required to defend the Greens' exercise of religion.