The contraceptive mandate defenders’ upside-down version of religious freedom

Scott Gaylord Professor, Elon University
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Protecting religious liberty threatens religious liberty.

According to the New York Times, that odd notion is the “strongest single argument” in favor of the abortifacient and birth control mandate of the Affordable Care Act (ACA). The mandate will be argued at the Supreme Court in March in cases brought by the Hahn and Green families and their businesses, Conestoga Wood Specialties and Hobby Lobby.

The Times draws this theory especially from the recent amicus brief of Professor Frederick Gedicks, who argues that the First Amendment’s Establishment Clause prohibits religious exemptions when the government orders a believer to buy something for a third party.

Think about that. To save freedom, the Court must destroy it. This argument turns freedom upside down. Freedom means the government cannot coerce you. It doesn’t permit others to use the government to coerce you to buy things for them.

If this is the government’s strongest argument, then the Hahns and Greens should feel good about their chances. Families challenging this mandate are on solid footing within America’s tradition of respecting religious freedom.  The Religious Freedom Restoration Act of 1993 received nearly unanimous bi-partisan support in Congress and was signed by President Clinton. RFRA applies the most demanding legal standard to protect religious freedom, and it governs the ACA.

RFRA and similar laws advance religious freedom to protect religious and moral minorities in a pluralistic society. Many activities that the government wants to coerce go to the heart of how people view human life and creation: abortion, sterilization, capital punishment, and physician-assisted suicide. The government should not force people to be complicit in those activities against their faith, but if it does, RFRA shields their religious beliefs.

Of course, there is another glaring problem with Gedicks’ argument. If refraining from buying people’s abortion pills equates to harm against third parties, then the government is attacking “liberty” far more than any of the mandate’s challengers. Under the “if you like your plan, you can keep it” umbrella, the ACA itself decided not to apply this very mandate to tens of millions of women. If we take Gedicks’s argument seriously, the Constitution must prohibit the government from giving any exemptions, even exemptions to churches, synagogues, mosques, and other religious organizations. Free exercise must be stricken from the Constitution.

But this is a curious result given that the ACA statute did not even specify that birth control had to be mandated in the first place. Under Gedicks’ view, bureaucrats can arbitrarily take away the free exercise rights of some Americans while, at the same time, giving exemptions to select groups. This nonchalance towards the mandate shows that not even Congress believes that the mandate advances an absolute “right.”

Gedicks’ error is to assume that by letting individuals exercise their religious beliefs the government “establishes” those views. The Court has rejected this line of argument, noting that “[t]here is ample room under the Establishment Clause for benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” This is so because religious liberty is an inalienable right endowed by the Creator, not the state.

Contrary to Gedicks’ suggestion, religious liberty is not violated when others can’t get the government to conscript you into paying for their activities. As the Supreme Court has acknowledged, the government does not have “an affirmative constitutional obligation to ensure that all persons have the financial resources to obtain contraceptives.” In light of the Free Exercise Clause, it is all the more true that individuals who operate their family-run businesses according to deeply held religious principles cannot be forced to buy birth control for others.

Not buying an employee’s week-after pill is no more an “imposition” or “establishment” of religion than not buying the employee a beer is an “imposition” of sobriety. Looking at this case soberly, the Supreme Court should find that religious liberty is protected, not threatened, by allowing families to conduct their business operations according to their faith.

Scott Gaylord is the Jennings Professor and Emerging Scholar at Elon University School of Law in Greensboro, NC, where he teaches constitutional law. He is the author of an amicus brief supporting Conestoga Wood Specialties and Hobby Lobby.