This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The other shoe never dropped so fast. Last week in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held that the Religious Freedom Restoration Act (RFRA) excuses closely held for-profit employers from providing contraceptive coverage under the Affordable Care Act's "contraception mandate." Within days, the court issued an exemption order in a related case, Wheaton College v. Burwell, which magnified the potential dangers of its Hobby Lobby decision.

The mandate already exempts religious nonprofit organizations such as Wheaton, which is a Christian college. Wheaton needed only to list the four contraceptives to which it objects on a government form and send it on to its health insurer. The insurer would then have been legally obligated to supply the contraceptives to employees and dependents in Wheaton's place, without any charge to employees or to Wheaton itself. But Wheaton objects to completing the form to get the exemption. Sending the form to its insurer, it claims, would make it complicit in evil, by triggering the insurer's obligation to provide the contraceptives and facilitating the decision of an employee to use them. Six Justices ordered that, while Wheaton's challenge to the mandate is pending, it didn't have to complete the form or send anything to its insurer to obtain the exemption, but needed only to send a letter to the government listing its objections.

The Supreme Court has been vigilant in fairly treating religious minorities, and it has taken a "hands-off" approach to churches and religious congregations to preserve its neutrality in matters of faith. But when the court has flirted with the idea giving the faithful a special right to ignore the rule of law, it has quickly learned that equity and good order are immediately threatened by the boundless reach of religious conscience. Good sense, constitutional tradition, and justice among a religiously diverse people, all counsel rejection of the idea that believers are entitled to disobey laws that everyone else must to follow. The Court held that clearly 125 years ago, and reaffirmed it just as clearly in 1990.

Hobby Lobby overturned this understanding, giving most employers a RFRA right of exemption from any law that "substantially burdens" that employer's exercise of religion, unless the government can prove that the law "is in furtherance of a compelling government interest" and "is the least restrictive means of furthering that compelling interest." Hobby Lobby relied on the religious nonprofit accommodation that Wheaton is challenging, reasoning that this accommodation can be extended to closely held for-profit corporations. By completing the form and sending it to its insurer, Hobby Lobby gets its religious objections accommodated, its female employees get the mandated contraceptives from the insurer, and everyone is happy.

But Hobby Lobby and other for-profits are likely to make the same objection as Wheaton: completing the form and sending it on would make them complicit with evil. This accommodation won't work unless the employer informs its insurer of the contraceptives it refuses to cover, so that the insurer can supply them in the employer's place. This is what makes Wheaton College so troublesome: it raises the possibility of employer exemptions from the mandate without assurance that their female employees will receive the mandated coverage from the insurer.

In the wake of Hobby Lobby, Wheaton College suggests how extreme employer requests may become. If RFRA might excuse an employer filling out the very form that exempts it from the mandate, what won't it excuse? It is easy to imagine exemptions from covering all contraceptives (not just a few) and other prescriptions and procedures (not just contraceptives); RFRA might even justify exemption from prohibitions on sex, religion, or sexual-orientation discrimination.

The Court did not "restore" religious liberty by granting Hobby Lobby a RFRA exception, but dealt it an unprecedented blow. After Hobby Lobby and Wheaton College, believers and unbelievers alike are threatened with bearing a wide spectrum of workplace costs imposed by someone else's religious convictions. Protecting the liberty of all Americans requires the repudiation of this approach.

Frederick Mark Gedicks is Guy Anderson Chair and Professor of Law at Brigham Young University. Lawrence Sager is Alice Jane Drysdale Regents Chair in Law at The University of Texas. The opinions expressed above are those of the authors and not necessarily those of their respective academic institutions.

comments powered by Disqus