WASHINGTON — Supreme Court Justice Stephen Breyer peered over the bench at the lawyer and all but said he just didn’t buy it. “You will go out this door, and you will buy hundreds of things, if not thousands, where money will go from your pocket into the hands of people, including many government people, who will spend it on things you disagree with,” Breyer told attorney Michael Carvin at oral argument last week.
Breyer was questioning the logic behind the case the court was hearing that morning, Friedrichs v. California Teachers’ Association, a challenge to union fees brought by teachers and a conservative Christian educators’ association. They say their First Amendment rights are being violated by being required to pay a union for collective bargaining. But Breyer could have been talking about any number of conservative legal claims, even if they cite different laws. Phrased as a desire to opt out, these arguments are pushing the boundaries of what counts as expression of speech or religion, and what violates it.
“You’re seeing an increasing tendency to use the First Amendment or First Amendment-like arguments by conservatives as a way of resisting various forms of regulation or progressive regulation,” said Samuel Bagenstos, a law professor at the University of Michigan Law School who oversaw civil rights at the Justice Department in the Obama administration. “The arguments that might have in the past come under the heading of 'property rights' or 'freedom of contract' now are coming under the heading of 'free speech' or 'free association' or 'religious freedom.'”
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That phenomenon includes Hobby Lobby v. Burwell, the 2014 case in which a corporation successfully claimed its religious rights were being violated by having to cover contraception on its employee insurance plan. And this term, it includes the follow-up to Hobby Lobby, Zubik v. Burwell, which could take religious refusal to a whole new place. The plaintiffs, who are nonprofit schools and charities with religious affiliations, already don’t have to pay for contraceptive coverage. But they argue that what the Obama administration calls an opt-out form is actually conscripting them in helping employees get “abortion pills,” known to most people and the medical community as birth control. Citing the Religious Freedom Restoration Act (RFRA), a law that sought to strengthen First Amendment protections, the groups also object to even contracting with an insurance company that is giving other people contraception.
“The legal issues in the two are distinct, but both seek to roll back important protections in the name of expressive or religious rights,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief.
And that’s just what has reached the Supreme Court. In lower and state courts, religious objectors, largely Catholic and Protestant Christians, are asking to be exempted from anti-discrimination law so they can refuse service at same-sex couples’ weddings. Some Catholic universities have asked for religious exemptions to block adjunct professors from unionizing at their institutions, notwithstanding the Vatican’s longtime and explicit support of unions. Hobby Lobby isn’t their only win: In 2012, the Supreme Court allowed a Lutheran school to be exempt from the Americans with Disabilities Act, because the school said a teacher counted as a minister.
Of course, to the proponents of broader religious exemptions, including Republican presidential candidates, this is nothing new — just American tradition. Answering Breyer at the Supreme Court that morning, Carvin, the attorney for the teachers who said union fees violate their First Amendment rights, said, “As to requiring people to give money to [that] which they don't wish to give, Thomas Jefferson said that was sinful and tyrannical. James Madison famously said, requiring three pence is the thing. So it's not at all something that we've invented.”
But Carvin was asking the court to accept a First Amendment argument it rejected nearly 40 years ago. Just about every legal observer thinks Carvin’s side will win and the precedent that the union fees don’t violate the First Amendment will fall. Something has changed — and liberal legal scholars fear where that change is heading.
The plaintiffs in these cases aren’t asking the courts to dissolve unions, repeal the Affordable Care Act or its contraceptive coverage requirement, or reverse the Supreme Court’s same-sex marriage decision. “Although Petitioners, as Roman Catholic entities, disagree with the Government’s goal of providing the mandated coverage, they do not challenge the legality of this goal,” some of the plaintiffs in Zubik wrote in their brief, adding, “Rather, Petitioners ask only that they not be forced to participate in this regulatory scheme in a way that violates their religious beliefs.”
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The law says that government cannot “substantially burden a person’s exercise of religion.” One of the disputes at the heart of Zubik is who decides what burden is substantial and what isn’t. The objectors say that as long as they can show their objection is genuine, they get the final word on the question. “If a religious adherent sincerely believes that taking a particular action would make him complicit in the sin of another, then courts must defer to that belief,” they wrote in their brief. The action in question: Filling out a short form that certifies their objection to the insurer or the government.
But in the contraceptive cases, the Obama administration, and almost every federal appeals court to rule on the cases so far, argue that’s not what the religious freedom law says — or how the form in question works. They contend that insurance plans cover contraceptives by default, so the opt-out form isn’t “triggering” anything. And they say that it’s not so simple as declaring your objection.
“If the Court is going to relieve religious employers” of their obligations, wrote Brigham Young University law professor Frederick Gedicks, “then obviously the Court itself needs to police the boundaries of that exception, lest employers push those boundaries so far that the exception swallows the rule.”
The four Democratic appointees on the court made it clear how they felt on the question in a preview of the case, when the court temporarily blocked Wheaton College from complying with the contraceptive opt-out in 2014. “Not every sincerely felt ‘burden’ is a ‘substantial’ one,” wrote Justice Sonia Sotomayor, “and it is for courts, not litigants, to identify which are.”
The exception swallowing the rule is precisely the fear that liberals have about these exemption claims. The plaintiffs in Zubik have suggested alternate ways for the government to help women to get contraception under the Affordable Care Act “without involving Petitioners,” such as a “‘public option’ to provide ‘contraception insurance’” or expanding the federal Title X program for low-income women.
But while the court doesn’t have to consider whether something is politically feasible, the facts on the ground suggest women who work for objecting institutions aren’t about to get their federal contraception cards anytime soon. Many congressional Republicans fiercely oppose the very existence of the Title X program, as well as its major beneficiary, Planned Parenthood. The “public option” for any health insurance at all, let alone one specifically related to women’s contraception, didn’t get very far the last time Congress considered it, with far more favorable numbers for liberals.
But give public employees the right to opt out of paying fees for collective bargaining, and union resources and power shrink. Poke holes in what was touted as seamless health care coverage, ensuring access to people who were previously uncovered, and it doesn’t look so seamless. Allow religious reasons to opt out of anti-discrimination law and leave the most vulnerable unprotected.
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If the plaintiffs succeed, it will be partly because social conservatives will have successfully cast themselves as oppressed by the whim of the majority. “When opponents of such laws have been unable to block them entirely, they have invoked claims of religious liberty and shifted from speaking as a majority seeking to enforce traditional morality to speaking as a minority seeking exemptions from laws that depart from traditional morality,” Yale Law professor Reva Siegel and University of California law professor Douglas NeJaime recently wrote. “In this way, they can appeal to pluralism and non-discrimination to justify limiting the recently recognized rights of other citizens.”
Bagenstos agrees. “It puts liberals who have traditionally been defenders of free speech on the defensive,” he says. It doesn’t hurt that Justice Anthony Kennedy, the deciding vote in many cases, is very sympathetic to First Amendment claims.
Georgetown Law professor Robin West has written that the newly broad exemption claims create “separate sovereignties,” which try to create an entirely separate regime where religious law prevails. That, she wrote, “sometimes come with profound costs to the weaker members within them, who no longer enjoy the protection of the law against the possibly abusive practices of the stronger members of their separate sovereign community.”
A legal precedent that says a “substantial burden” on religion is whatever the religious objector says it is “could open the floodgates to allow religious objectors to deny important rights and benefits to a great number of people in a variety of contexts,” says Mach. He added, “There is a history in this country of people seeking a religious exemption from a non-discrimination rule. It would be new if they prevailed.”