By Mike Dorf
The lawsuits recently filed by Catholic dioceses around the country raise a number of interesting legal questions. In this post, I'll take a look at the main issues. I'm using as my point of departure the lawsuit filed by the Fort Worth, Texas Diocese (complaint available here) but the analysis would be the same for other cases.
I'll begin with a very brief overview. As part of the Patient Protection and Affordable Care Act (PPACA), employer-provided health insurance plans must cover preventative care for women, including, as interpreted by the executive branch, sterilization and contraception, which in turn includes contraception that works by preventing implantation (and is thus regarded by some people as a form of abortion). Such insurance plans cannot include any extra co-pays or premiums for this coverage.
Religious employers are exempt but the regulations define religious employers to refer (more or less) to churches and the like, rather than broader religiously affiliated entities, such as religiously affiliated schools and hospitals that serve people outside the faith. Under a compromise that the Obama Administration accepted earlier this year, the insurer rather than the employer must pay for the cost of contraception, etc. The Administration reasoned that because such coverage is cost-effective, premium increases would not simply be passed on to the employer and employee. (I discussed the underlying economic assumptions here.)
Although some Catholic charitable organizations were satisfied with the compromise, others weren't, leading to the current litigation. The strongest religious liberty claim goes like this: Catholics have religious obligations to tend to the needy by feeding, educating and providing medical care to them, regardless of whether the needy are Catholic; thus Catholic institutions will not qualify for the narrow exemption for religious employers (which only extends to institutions that "primarily" serve and employ co-religionists); but Catholics are also bound by a religious prohibition on supporting abortion and birth control, and so the legal obligation to provide health insurance that includes such coverage puts them to a choice between violating their religious obligation to tend to the needy of all faiths or violating their religious prohibition on supporting abortion and birth control.
The Fort Worth Diocese complaint sets out nine claims, but the first two go to the heart of the case. They contend that the regulations violate the Diocese's religious liberty as protected by the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause. RFRA, readers may recall, was held unconstitutional as applied to state infringements on religious liberty in the Boerne case. However, the Act remains valid as applied to the federal government (as illustrated by its application in the O Centro case). Because the requirement being challenged is contained in a federal law, the PPACA, it is limited by RFRA. Thus, the Forth Worth Diocese and other comparably situated dioceses are entitled to an exemption if, per RFRA, they can show that the application of the contraception coverage obligation (1) substantially burdens (2) the exercise of religion, unless (3) the PPACA obligation is narrowly tailored to advance (4) a compelling government interest.
Because RFRA was modeled on constitutional case law, the same test will apply under the First Amendment
if the Diocese's free exercise rights are implicated. Employment Division v. Smith, the case that RFRA sought to overrule, held that general laws that incidentally burden religion do not trigger heightened scrutiny under the Free Exercise Clause, and so it might appear that the free exercise claim fails. To be sure, the Diocese includes a claim that because the PPACA requirement is subject to various exceptions, it is not neutral, but this strikes me as a losing objection. There is no singling out of religion or particular religions here.
The better reason to think that Smith may not bar the free exercise claim relates to what the complaint calls (in Count V), "Interference in Matters of Internal Church Governance." Per custom, the complaint does not cite case law, but this claim pretty clearly aims to build on the Supreme Court's decision earlier this year in the Hosanna-Tabor case. There the Court held that Smith does not apply to internal governance claims. Better yet for the plaintiffs here, Hosanna-Tabor also interpreted the "ministerial exception" broadly, to go beyond the right of a religious body to decide on its own pastors. So too here, the Fort Worth Diocese and the plaintiffs in other cases will undoubtedly argue, the exception for churches and the like but not religious schools, hospitals and charities, is too narrow.
Yet in the end, it probably does not really matter whether the plaintiffs succeed on the internal governance argument, because even if they do, all they will get under that doctrine is the application of the same test to which they're independently entitled under RFRA. To be sure, there is a bit of wiggle room here, because the internal governance doctrine interprets both the Free Exercise and Establishment Clauses, so it's possible that it is not even subject to the strict scrutiny test: Prima facie violations of the Establishment Clause generally mean the government loses, full stop. However, I doubt the courts would apply the constitutional test that way. It seems to me much more likely that in this context, a finding that internal governance is implicated, would trigger strict scrutiny rather than per se invalidation.
Accordingly, I believe the case will come down to the application of the RFRA test, certainly as a matter of RFRA itself and maybe via the First Amendment too. Here is where the government should probably win. Religious freedom claimants rarely lose on the ground that their claims aren't sincere, so let's assume that the Diocese really does operate under a religious prohibition against facilitating contraception, even for non-Catholics. The Diocese then argues that the PPACA substantially burdens its ability to act in accordance with that prohibition and that in doing so, the PPACA is not narrowly tailored to advance a compelling government interest. After all, the Diocese says, if the government wants to make contraceptives more widely available, it has many means of doing so without enlisting religious organizations in violation of their beliefs.
Convincing? I don't think so. The problem with the Diocese's argument is that it utilizes a too-encompassing notion of participation in conscience-violating activity. Consider a reasonably closely related hypothetical. Suppose that Section 3 of the Defense of Marriage Act, which defines marriage as straight marriage, is repealed, and that the federal government treats marriages as valid or not depending on state law. Now suppose that a Catholic or other religious hospital in New York objects to making Social Security payments for some or even all of its employees on the ground that such payments will go to support Social Security disability and survivor benefits for the same-sex spouses of people married under New York law, and thus under federal law. Let's imagine that the tenets of the religion with which the hospital is affiliated really do forbid the Social Security payments. Nonetheless, the hospital loses--probably even before a court gets to applying strict scrutiny. For a law to substantially burden the exercise of religion, the religious claimant must be claiming something that is not too "external" to the claimant.
The point is apparent in two pre-Smith cases, i.e., cases decided at a time when the Court was still willing to subject government laws and policies to strict scrutiny even if they didn't single out religion. They are the Lyng case, in which the government was permitted to build a road on land holy to a Native tribe, without having to satisfy strict scrutiny, and the Roy case, in which the plaintiffs unsuccessfully objected to the government's assignment of a Social Security number to their daughter on sincere religious grounds. Whatever one thinks of the precise results in these cases, they illustrate a broader principle that there are limits to what counts as coerced participation in religiously impermissible activities.
A requirement that Catholic hospitals perform abortions or dispense contraception pretty clearly triggers strict scrutiny under RFRA. A requirement that Catholic hospitals and schools make Social Security payments for their employees, which payments may then be used to pay benefits to same-sex spouses (or under current law, to spouses who were previously divorced), pretty clearly should not trigger strict scrutiny under RFRA. To my mind, the requirement to provide health insurance that includes coverage for contraception etc. falls on the no-strict-scrutiny side of the line. The Catholic institutions are not being required to provide goods and services they deem immoral. They are not even being asked to pay for such goods and services.
That doesn't mean I'm confident that some judge won't rule for a plaintiff in one of these cases. I'm enough of a legal realist to understand that ideology will lead different judges to see these issues differently. But I do think that I have zeroed in on the right question: At what point does conscientious objection fail because one cannot plausibly describe the relevant activity as "participation" without infringing the rights of others or social policy more broadly? As I've said before, that is not an easy question.