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Friday, May 25, 2012

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.      



Posted by Paul Horwitz on May 25, 2012 at 08:46 AM in Paul Horwitz | Permalink


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N.D., did you look at the link? What about it is wrong?

What is wrong about my statement that women don't have ten kids partially because the wear and tear of pregnancy can result in "physical impairments" of a significant degree? They don't have them in part because they use birth control.

Any pregnancy "impairs" a woman "physically." Ask any pregnant woman. Can they physically do the same things? Do many not often have to have extended bed rest? What is complicated here?

Pregnancy is a significant change to the body and women carefully plan when they have them in large part to handle the physical impairments and changes that occur. If you think because of your religion that they should deal with these things w/o using birth control, fine, but it goes beyond that to try to explain them away this fashion. It does not disrespect pregnant women to say this. It doesn't make it not natural. Natural things lead to physical impairment and other things.

Again, did you read the link that summarizes why this and other coverage is required? Not using birth control results in various health problems and in some cases even abortion. It is ironic in that respect to reject its use. What is wrong with the discussion?

Posted by: Joe | May 28, 2012 11:41:55 AM

Joe, since it is true that pregnancy is not a disease, an illness, an injury, a physical impairment or a mental impairment, then we know that there was never a compelling reason for this administration to mandate that every Insurance Company provide contraception coverage, to begin with.

Posted by: N.D. | May 26, 2012 9:00:12 PM

I'm not sure how contraceptive use by itself promotes "sexual objectification of the human person," particularly among married couples.

I already referenced -- even using your rather narrow definition of health* -- one example. A major reason the average married couple uses contraceptives is the alternative is serious wear and tear on a woman's body, particularly if non-use would lead to 10 or so children. For specific women (or teens), pregnancy is more risky to health. Some might even consider abortion if they accidentally get pregnant.

For more information why this along with other things was determined by a panel of health experts to be part of preventive health care:


How much is promotes promiscuity is also debatable; it might just as well be said to promote safer and more rewarding sexual health and relationships. This is again why many religious faiths -- in fact a vast majority of Catholics -- support their use.


Cf. Wikipedia: "diagnosis, treatment, and prevention of disease, illness, injury, and other physical and mental impairments in humans"

Posted by: Joe | May 26, 2012 3:47:38 PM

Joe, so my question is, since it is true that the purpose of healthcare is to affirm and sustain Life through the diagnosis, treatment and prevention of disease, and it is true that contraception does not affirm or sustain Life, then how can anyone claim that mandating that every Insurance Company provide contraception for all, thus promoting promiscuity and the sexual objectification of the human person, is Good for the posterity and the prosperity of this Nation or the World?

Posted by: N.D. | May 26, 2012 9:21:09 AM

Also, I find it curious when people only answer part of a question.

Posted by: Joe | May 25, 2012 8:00:02 PM

N.D., putting aside that any number of faiths disagree with that statement, I'm not why that's what "healthcare" means. Since the average woman don't have the sort of kids not using contraceptives will bring in part because of the wear and tear on her body, which affects "health," alone.

Posted by: Joe | May 25, 2012 7:59:23 PM

Joe, with all due respect, since it is true that contraception is not Life-affirming or Life-sustaining, contraception is not healthcare, to begin with.

Posted by: N.D. | May 25, 2012 6:24:00 PM

I think Oregon v. Smith might go too far but if this would require education institutions and so forth that have a religious motivation to be allowed to not allow those who work there or are served -- even those not of that faith -- to not use their own funds to pay for health needs that promote gender equality and safeguard the health needs of society as a whole -- I would be wary. Particularly when so many of them get lots of funding from the government and accept other limits.

Posted by: Joe | May 25, 2012 2:01:59 PM

N.D. how is requiring certain employers and institutions that supply insurance paid for by employee's salaries to cover certain things (e.g., coverage for corrective surgery even if the employer thinks this goes against what God intended) providing "free" coverage? The person is PAYING for the coverage. The insurance isn't free.

And, if the coverage requirement was only applied to married couples, would that satisfy you? Also, not sure how contraceptives promotes "sexual objectification" as such. But, I guess that goes beyond the current discussion.

Posted by: Joe | May 25, 2012 1:58:03 PM

With all due respect, Professor Horwitz, for those who don't get Religion, I am wondering if they can explain how mandating that every Insurance Company provide free contraception for all, thus promoting promiscuity and the sexual objectification of the human person, is Good for the posterity and prosperity of this Nation?

Posted by: N.D. | May 25, 2012 11:12:57 AM

Hi Paul -- thanks for this. A few things (and an apology in advance for the fact that this comment won't come close to answering all of your good questions): First, I want to be clear that the "good . . . reasons" I had in mind for distinguishing, "when crafting [legislative] religious-liberty accommodations," between institutions and individuals don't (I *think*) have to do with claims about institutions being prior to or more important than or constitutionally-more-protected than individuals. I'm simply nodding to what seems to me to be the reality, i.e., that the project of crafting exemptions from laws that the political community determines serve well the common good involves balancing, trade-offs, etc. I think political communities should accommodate religion generously, but sometimes it will be the case that the "best we can do" will involve distinguishing -- not for reasons of principle but because it's the best way to get as much accommodation as possible -- between institutions and individuals.

Paul is "not as convinced as [I am] 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." With the caveat that being in favor of "Smith" (as I understand it) does not necessarily require endorsing the way the case deals with the precedents it does not explicitly overrule, I do think Smith and Hosanna-Tabor are consistent. I say a bit about this in this short essay: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1880084, if anyone is interested.

Now, Hosanna-Tabor is, as I see it, not about all generally applicable laws that "incidentally burden [religious] institutions." I assume that, Smith is the rule for most generally applicable laws that burden religious institutions' religious freedom just as it is the rule for most generally applicable laws that burden individuals' religious freedom. But, it seems to me that for reasons that sound in a long history, in legal pluralism, and in the First Amendment's jurisdictional dimension, Hosanna-Tabor supplies the rule that constrains regulation in a very specific and special context.

I also think, for what it's worth, that Smith might usefully be thought of as one of those instances where the right rule for purposes of judicial enforcement of a right is not co-extensive with the full scope of the right. But, I admit, I am not as up on the state of the conversation in this area (i.e., the underenforcement / interpretation v. construction) conversation as I'd like to be.

Posted by: Rick Garnett | May 25, 2012 11:12:21 AM

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