Smith, Hosanna-Tabor, and the Contraception Mandate

My friend and co-blogger Rick has written some very interesting posts at MoJ on the recent lawsuit by Notre Dame and other Catholic institutions opposing the "contraception mandate," as amended. In a post yesterday, he discussed the relationship between the lawsuit, the law, and Employment Division v. Smith, in response to a claim elsewhere that the real problem lies with Smith, not the mandate. He writes that while Smith is certainly contestable, he believes it is a"correct interpretation of a piece of positive law -- one that returned the Court's doctrine to where it had been for most of the previous century -- that, certainly, makes it possible for elected officials to harm religious liberty, but also authorizes and encourages those officials  elected officials to respect and accommodate religious liberty, to the extent possible." He also writes about individual conscience claims. If I understand his view, in light of his statement about Smith, it is that while we may and even should speak in terms of rights of individual conscience, as a matter of positive law they are a matter of legislative accommodation only; and he adds that "there will, in some cases, be good, 'politics is the art of the possible' reasons to distinguish, when crafting religious-liberty accommodations, between exemptions-for-institutions and exemptions-for-individuals."

I have some respectful questions about this position, particularly in light of Rick's views on the Hosanna-Tabor decision. (I should add that the complaint in the lawsuit makes both a RFRA claim and a constitutional claim, and I'm not addressing my questions to the lawsuit in particular.) I'm not as convinced as Rick, I think, that it's possible to maintain a strong position in favor of both Smith and Hosanna-Tabor, or in favor of the institutional freedom of churches as a matter of constitutional right without supporting some constitutional right of individual religious conscience. It can be done, to be sure, but I think it runs into problems either as a matter of constitutional law or as a matter of coherence. 

I agree with Rick that a reasonable argument can be made in favor of Smith, although I don't share that view. And one who holds that view can at least ostensibly still believe that, for what Rick and I might call jurisdictional reasons, government still cannot interfere with the internal operations of churches, and that laws like the contraception mandate do just that by requiring churches as institutions to violate their fundamental principles. But I think this position is not easy to maintain.

Focusing on free exercise for individuals, I take Rick's position to be that government cannot target individual religious beliefs or practices. But it can regulate conduct, even where the regulation incidentally burdens religious practices. It may, but need not, accommodate those practices.

Where does that leave us when it comes to institutional exercise? Again, I can see an argument, consistent with Smith, that government cannot target institutional religious exercise; and I can see an argument that government may accommodate institutional religious exercise. But may it enact regulations that incidentally burden those institutions? Are generally applicable laws that only incidentally affect the core beliefs of religious institutions subject to a higher level of constitutional limitations?

I find that position harder to maintain, unless Rick is making a purely originalist claim. (That claim would be subject to its own questions, which I can't resolve here. But I don't take him to be making a purely originalist claim in any event. Rick's approach may build on history, but I don't understand it to end with it.) One could argue that interfering with internal religious operations inevitably ends up trenching on matters of religious truth and doctrine that are beyond the state's jurisdiction. But why is that so if the intrusion is only incidental? And why, if it is so, is that not also true of incidental intrusions on individual religious practices, which also involve matters of religious truth and doctrine?

One could argue along something like the lines of a self-regarding versus other-regarding distinction. The Hosanna-Tabor Court hinted at this when it said that "Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself." I find something to that distinction. In somewhat different terms, I've argued that some of the "harms" involved in the ministerial exception cases should be viewed substantially as harms of membership: that is, although opponents of the ministerial exception view them as harms in the world, so to speak, much of their sting comes from the employee's desire to remain as a ministerial employee within the church. Choosing to become a ministerial employee is like choosing to become a member of an ultra-Orthodox Jewish sect, or indeed of many religious or non-religious groups; the choice of membership involves the bitter as well as the sweet. But I must say that I don't think the language of Hosanna-Tabor itself is terribly convincing. And in the present context, as long as the mandate is not aimed at religion or religious institutions per se, I'm not sure that it's obvious whether the mandate should be described as involving an "internal church decision" as opposed to an "outward physical act." That's not to say the government might not choose to accommodate; but that's a matter of accommodation, not constitutional right.

Finally, one could argue that there is an institutional distinction: that government can burden individual religious practices but not institutional religious practices. Obviously, I find the second part of this statement attractive. But I also think it is problematic. I don't think the second part of the statement necessarily says anything about the first part of the statement: I don't think a belief in the soundness of institutional rights says anything one way or the other about the soundness of individual rights. One could argue that institutional exercise rights (even against incidental burdens, mind you) are possible, while individual exercise rights are not, because of the "anarchy" fears raised by Justice Scalia. But there are hundreds of faiths, and hundreds of denominations within those faiths, in the United States; there are significant practical concerns in either event. As a purely practical matter, then, I don't think such a distinction would be principled or sound. And I think the distinction between individual and institutional constitutional rights against incidental burdens falls short as a textual matter. Belief in freedom of association doesn't preclude belief in "the freedom of speech" as an individual right; I'm not sure why belief in freedom of the church precludes the belief that "the free exercise of religion" applies to individuals.

In short, I'm not sure why, if Smith is correct, it should not, in the main run of cases involving laws not targeting religious exercise, also apply to a law that only incidentially burdens institutional religious exercise. I do think that laws that end up involving the courts in questions of religious truth are problematic; but I'm not sure this adequately distinguishes institutional from individual conscience claims. I do think the Church and its bodies should have been better accommodated here, but I understand Rick to be making an argument about constitutional right, not just RFRA or legislative accommodation in general. I do think a pre-Smith rule raises difficult questions of policy and administration, but I think that on that policy level, the distinction between individual and institutional rights against generally applicable laws may simply be a matter of degree, not of kind.

My tentative view is that while Smith and Hosanna-Tabor may be capable of some degree of reconciliation, in a deeper sense Smith is undermined by many of the arguments that sustained Hosanna-Tabor. I should add that I'm sure Rick believes that religious institutions are not free to do anything in the face of generally applicable government regulation, just as those who think Smith was wrong don't think religious individuals are free to do anything either. I'm just not sure why Rick thinks one is a matter of constitutional right and the other a matter of political accommodation. I hope he'll expand on his views.