Frederick Mark Gedicks holds the Guy Anderson Chair at Brigham Young University Law School and is co-author of “RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion,” forthcoming in the Harvard Civil Rights-Civil Liberties Law Review.
Can my employer make me pay the cost of practicing his religion? In the coming months, the Supreme Court will decide two cases involving this issue. The cases are about the Affordable Care Act’s “contraception mandate” — the law’s requirement that employer health plans cover Food and Drug Administration-approved contraceptives without out-of-pocket expense, including co-payments, co-insurance or deductibles. The employers in these two cases are among scores of profit-making businesses that are claiming a religious right to be excused from this requirement because the use of contraceptives violates their owners’ religious beliefs.
The businesses in these cases are not churches or even nonprofit hospitals or universities with religious affiliations. They are instead a cabinet manufacturer and a chain of arts and crafts stores. Nevertheless, their owners claim that contraceptive coverage poses a grave threat to their religious liberty.
These cases indeed pose a grave threat to religious liberty, but not to that of the owners of these businesses. Exempting ordinary, nonreligious, profit-seeking businesses from a general law because of the religious beliefs of their owners would be extraordinary, especially when doing so would shift the costs of observing those beliefs to those of other faiths or no faith. The threat to religious liberty, then, comes from the prospect that the court might permit a for-profit business to impose the costs of its owners’ anti-contraception beliefs on employees who do not share them — by forcing employees to pay hundreds of dollars or more out of pocket each year for what should be covered under the law.
The First Amendment’s establishment clause prevents the government from requiring people to bear the burden of religions to which they do not belong and whose teachings they do not practice. To be sure, the U.S. government should accommodate religious beliefs and practices but only when doing so does not impose significant burdens on others. We accommodate, for example, those who object for religious reasons to sending their children to public school; no one is hurt if these families opt for a private school or home-schooling.
On the other hand, the Supreme Court consistently has condemned government accommodations that shift the cost of practicing a religion from those who believe it to others who don’t. For example, the court struck down a state law that gave employees an absolute right not to work on their chosen Sabbath because of the burden it imposed on others. If most employees were Christian and took Sunday off, the statute would have forced the remaining, non-Christian employees to work every Sunday. This, the court said, violated the establishment clause: “The First Amendment . . . gives no one the right to insist that in pursuit of their own interests, others must conform their conduct to his own religious necessities.”
If the court grants these businesses the religious exemption they seek, it essentially would be directing the women who work for these businesses to bear the cost of the owners’ anti-contraception religion. After all, but for the business’s religious objection, the cost of contraception would be fully covered by insurance. And the burden on the employees is significant. Some of the most reliable and cost-effective contraceptives have up-front costs approaching $1,000, and many branded contraceptives cost this much or more annually; even generic birth-control pills, which are not appropriate for many women, may cost hundreds of dollars a year. These costs, moreover, would be spread widely throughout the labor force. Consider Hobby Lobby, the arts and crafts chain that brought one of the lawsuits pending before the Supreme Court. If the court rules in the company’s favor, Hobby Lobby’s 13,000 employees would underwrite the religious beliefs of the single family that controls the business.
Thomas Jefferson once famously expressed his indifference to whether his neighbors believed in one god or 20: “It neither picks my pocket, nor breaks my leg.” The principle invoked by Jefferson is equally critical today in the face of the remarkable religious diversity of the United States. As a Mormon raised where few other Mormons lived, I have come to appreciate that the First Amendment left me free not only to choose my minority faith but also to live without paying for the religious choices of others.
Americans must be free to practice their respective faiths but also free from bearing the burdens of their employer’s faith. The Supreme Court should ensure the liberty of all Americans by rejecting the efforts of for-profit businesses to impose their owners’ religion on employees.
The writer is a professor at Brigham Young University’s J. Reuben Clark Law School.
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