Free Exercise In This New Year

Justice Sonia Sotomayor did double duty on New Year’s Eve 2013, ringing in the New Year in Times Square while joining a kick dance on TV, and also, acting as Circuit Justice for the Tenth Circuit (yes, each Supreme Court Justice is a “circuit rider” too, without having to travel outside their chambers in D.C.), “temporarily blocked the enforcement of the Affordable Care Act’s birth control mandate against some Catholic groups challenging the mandate, including the Little Sisters of the Poor in Denver” (SCOTUSblog).  Notre Dame tried and failed to get a similar injunction against the mandate from a federal appeals panel, and has not appealed to their “circuit justice,” Elena Kagan.  Justice Sotomayor surprised some people, but the issue was headed to the full Supreme Court anyway, I expect, so she is simply not impeding that, rather than judging the merits.

It would be very rude of me to say anything bad about the Little Sisters of the Poor.  I have no strong feeling either pro-  or anti-  Notre Dame (and I have no skin in any football game they play).  Still I would be most unhappy if they won their cases.  How come?  Simply because I do not believe that any of the mandates or regulations (after they were amended) of the Affordable Care Act impose much of a burden on the Little Sisters, Notre Dame, or any Quaker, Muslim, Conservative Jew, Buddhist, or Greek Orthodox person or entity.

Marty Lederman (at the Balkinization blog) explains why the law does not burden religious nonprofit groups.  First, churches and auxiliary groups are “exempt altogether from the requirement that they include contraceptive coverage if they offer a health-insurance plan to their employees.  The women who work for such churches thus…will not be afforded this new national benefit….Under…the ‘secondary accommodation,’ other religious nonprofits who object to contraceptive coverage also can exclude it from their employee (and student) health-insurance plans.  These…organizations need only certify that they have religious objections to providing coverage for contraceptive services, in which case they will not be required ‘to contract, arrange, pay, or refer for contraceptive coverage.'”  But for most of these nonprofits the insurance company or third-party administrator for self-insured group plans assumes responsibility for providing contraceptive coverage and is prohibited from imposing any extra fees or penalties for that coverage.

Lederman notes that the secondary accommodation’s whole purpose is to relieve religious nonprofit groups of any obligation to “contract, arrange, pay, or refer.”  Notre Dame, moreover, is not forced to “choose between violating its religious obligations and ‘paying enormous penalties,” since they have the “perfectly lawful option of not offering a health insurance plan at all.”  If that seems harsh or unreasonable, Lederman asks us to back up and recall that the health care law lets Notre Dame or the Little Sisters file a certification to insurers that “it is eligible for and exercising the available religious accommodation because it objects to providing contraceptive coverage.  By certifying, Notre Dame would not ‘authorize’ anything: Federal law does that work.  As the district court explained, ‘if Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception’….If that is enough to establish a substantial burden on Notre Dame’s religious exercise, then…’opt outs’ for dissenters [to public laws] would themselves often create the very conflict with religion that they are designed to alleviate–and would thus threaten to prevent the state from both accommodating religion and satisfying its state interests through an alternative means, such as the use of a non-objecting party.”

To put Lederman’s point another way, if Notre Dame or the Little Sisters want to preserve such a degree of purity that they not only decline to provide birth control to employees themselves, which is generally agreed to be part of their right of conscience, but also seek to gum up the works of a law passed by democratically elected representatives of the people who chose to supply birth control as part of the overall project of improving national health and well-being, how can they complain that they might have to pay some sort of penalty? Lederman asks us to consider an analogous situation: there is a federal law permitting a district court judge to recuse him- or herself from a case where he or she likely has a bias or prejudice.  “In a 1998 article, former Notre Dame professor (now President of Catholic University) John Garvey argued that a judge who adheres to Catholic doctrine [against] the death penalty would have to invoke this law to recuse himself (meaning “sit out”) from the sentencing hearing in a capital case.  In such a case, the federal law provides that ‘any other judge’ can step in and conduct the hearing.”  But according to Notre Dame’s theory in this 2013-14 case, the Catholic judge “would be able to object to the sentencing hearing altogether–not only to his own participation in it–on the theory that his recusal would ‘trigger’ or ‘authorize’ the replacement judge to act immorally.”

The Little Sisters, and Notre Dame, and Sikhs, adherents of no religious faith, Methodists, etc. all have a right to express their “voice” in the public square.  They can also exercise the options (as Albert Hirschman put it) of exit, or loyalty, or some mixture thereof.  But the objections to the Affordable Care Act in these cases seem both strained and mixed-up.


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