by Travis Weber, J.D., LL.M.
March 10, 2014
Legal scholar and novelist Garrett Epps opens his recent piece in The Atlantic with the following statement: “If the conservative justices uses [sic] the same logic they have in the past, Hobby Lobby’s case against the contraceptive mandate doesn’t stand a chance.”
Mr. Epps conveniently finds praise for Supreme Court precedent, a position often either used or discarded as best serves the cultural assault on Christian ethics. Indeed, one can scarcely find lamentations about discarded precedent as district courts currently invent a federal constitutional right to same sex marriage. Here, however, Mr. Epps simply distracts from the free exercise issues in the Hobby Lobby case.
Hobby Lobby’s case centers on a free exercise claim brought under the Religious Freedom Restoration Act (RFRA). But Mr. Epps relies almost entirely on Establishment Clause cases as he attempts to argue that Hobby Lobby has no right to refuse to pay for certain contraceptives.
After laying out his arguments, he appears to receive the following special revelation: “But that’s the rub… When government directly funds religion, the Establishment Clause is violated; but when government gives benefits to individuals, and the individuals pass on the benefit to religion, no dissenter is injured, so there’s no violation.” After discussing how taxpayers should not be forced to provide money directly to churches, he asks: “Why is Hobby Lobby injured if the taxpayers in the Establishment Clause cases are not?”
I would have thought the answer is rather clear: the taxpayers are not seeking to exercise any right based on a religious objection to action compelled by the government. Exactly what “rub” Mr. Epps is talking about remains unclear. Hobby Lobby’s case is about whether the “exercise of religion” is substantially burdened under RFRA. It is not about the Establishment Clause or individuals being forced to support religion at the direction of the government.
Nevertheless, Mr. Epps continues: “[T]o assert a right to control employees’ private choice will be to hold that religious people — or, even more ominously, some favored religious people — are more easily injured than others, that their free-exercise rights trump those of their employees.” Mr. Epps does not explain what he means by “favored” religious people, but he falsely asserts that Hobby Lobby is seeking to control its employees’ choices. The Greens are not preventing their employees from obtaining the contraceptives at issue; they are merely saying: “Don’t make us violate our consciences by forcing us to use our company as the conduit for their delivery.” The Greens, like many Americans, simply want to remain free to live and work according to their beliefs. They don’t want to be forced to choose between paying crippling fines, shutting down their business, or dropping healthcare for their employees in order to avoid violating their consciences.
It remains unclear what “free exercise rights … of … employees” Mr. Epps is talking about. The reader hopes he is not suggesting that an individual’s religion requires their employer to pay for their contraception — indeed, such an idea is nonsensical. In any event, such musings are merely a distraction from reality, as Hobby Lobby’s employees have suffered no violation of their constitutional rights — they retain full access to all the contraceptives available under the employer mandate.
Furthermore, Hobby Lobby is willing to pay for 16 of the 20 contraceptives required by the mandate. The Green family only objects to 4 drugs that destroy human embryos, and does not want to be compelled to pay for the destruction of human life. In addition, Hobby Lobby is not objecting to employee access to these 4 life-destroying drugs, but merely saying it should not be compelled to cover them.
Mr. Epps’ claim that “[a]ll consciences are equal; but some are thus more equal than others” might sound catchy, but it twists the truth and clouds a proper understanding of the issue at hand. There is no conscience right to demand that others subsidize one’s birth control methods. And contrary to his assertions, RFRA does “elevate” religious claims when it forces the government to justify itself under strict scrutiny in free exercise matters. It does not merely “balance” free exercise claims against whatever law the government puts in place.
In an odd conclusion to his piece, Mr. Epps attempts to cite the Gospel of Luke for support of his anti-religious position. The parable he cites is actually in the Gospel of Matthew. But more importantly, the passage does not even support his argument. Examining the story in its full context, the laborers were actually complaining to their master about the size of their respective paychecks. The generous master (God) says he has the right to do what he wants with his own resources. This parable hardly supports the notion that Hobby Lobby’s employees should coerce it to subsidize their wages (which for beginning employees starts at 90% above the federal minimum wage) with birth control.
Hobby Lobby is not seeking to “dictate” anything to its employees. Hobby Lobby is not preventing its employees from using birth control methods. Hobby Lobby is merely saying: “Don’t force me to cover them!” The Greens are not trying to control employee choices; they simply object to being forced to subsidize acts that go against their religion.
In the end, the members of the Green family are merely seeking to exercise their religion as they run their company. Such a demand is not beyond the bounds of reasonable free exercise interpretation. RFRA makes that secure. The Court has supported even bolder free exercise claims in the past. It should support the Greens’ rather modest claim in this case.
Last month, FRC filed an amicus brief with the Supreme Court in the Hobby Lobby case that can be read here.