Anyone who has kept up on current events knows about the proposed Department of Health and Human Services (HHS) regulations that were announced in January. Designed to implement parts of the Affordable Care Act (ACA), they required employers to include contraception services in the health insurance plans they offered their employees. The primary objection to the regulations involves their application to religious organizations that are opposed to the use and provision of contraceptive services as a matter of faith and doctrine. The regulations did contain an exemption for some religious employers, but it was extremely narrow in its scope and would not apply to religious hospitals, universities, and charities.
In response to the regulations’ critics, President Obama offered a compromise solution. Under his new proposal, religiously affiliated employers will not be obligated to provide contraceptive coverage to their employees; instead, their health insurance companies will be required to provide the coverage directly to women at no charge. The cost of providing insurance coverage for contraceptive services would thus be shifted away from faith-based institutions that object to the mandate on religious grounds, to health insurance companies serving the populations at issue. Proponents of the compromise argue that because the provision of contraceptive services often reduces other policy costs incurred by health-care insurers, the cost of the shift to insurance companies would be minimal.
President Obama’s proposed compromise was satisfactory to some interest groups, but other ideological voices, including both liberal and conservative politicians, criticized the plan, albeit from opposite perspectives. The New York Times editorialized that “it was dismaying to see the president lend any credence to the misbegotten notion that providing access to contraceptives violated the freedom of any religious institution.”1 The U.S. Conference of Catholic Bishops, on the other hand, claimed that the proposal “continues to involve needless government intrusion in the internal governance of religious institutions, and to threaten government coercion of religious people and groups to violate their most deeply held convictions.2”
The Right Framework
We believe there is a serious religious liberty interest at stake in disputes like these. Religious institutions have an understandable desire, one worthy of respect, to use their own resources (public funds and facilities present a separate question) to advance and promulgate their faith—and not to support activities that violate their religious beliefs. Indeed, there is arguably something particularly intrusive and unsettling about the government forcing religious institutions to take action to use their own resources in a way that undermines their beliefs.
This affirmative commandeering of religious organizations to further the state’s purposes is, for some people, even more intrusive and burdensome than a law that ties religious institutions’ hands by forbidding them from engaging in conduct that their faith obliges them to perform.
The burden on religious liberty is thus a critical element in evaluating the unfolding HHS regulations, but it is not the only concern that needs to be taken into account. The public interest underlying the contraceptive access aspects of the ACA must be considered as well. We do not doubt the importance of contraceptive access to the public health of our society, nor do we doubt the value of the mandated insurance coverage to individual women. If religiously affiliated organizations such as hospitals, universities, and charities are exempt from the regulations’ requirements, a large class of women might be denied health benefits that other women receive, and that the state and the medical community strongly believe should be available to them. That is no small cost.
Finally, there is one other factor to consider. Some, though not all, religious exemptions provide benefits of secular material value to exempted institutions, in addition to protecting the institutions’ religious liberty. Typically these secular benefits are a consequence of relieving religious individuals and institutions of duties and obligations that other similarly situated persons or organizations must obey.
Some easy examples may help to clarify this point. Religious pacifists who are exempt from military conscription as conscientious objectors are relieved of having to violate their religious commitments, but they are also relieved of a physically dangerous duty that other individuals must fulfill. When an employee’s observance of the Sabbath is accommodated by their employer, the employee also gets to spend prized weekend time off with their family, while their coworkers may have to work more weekends to substitute for their absence. When religious institutions are exempt from regulations that require the expenditure of funds—for example, regulations requiring that facilities must be accessible to the disabled—the exempted institutions save money that can be used for other purposes. Thus, persons can certainly support exemptions for religious individuals and institutions in the name of religious liberty while questioning the fairness of allowing the beneficiaries of these accommodations to retain the accompanying secular benefits as well.
In sum, we suggest that religious accommodations in disputes such as this one should try to accomplish three goals. First, they should protect religious liberty to the extent that it is feasible to do so. Second, they should mitigate or spread the costs of protecting religious liberty so that they do not fall disproportionately and heavily on any individual or group. Third, they should promote basic fairness and avoid the privileging of religion by limiting the secular benefits religious individuals and institutions obtain as a result of any exemption they receive.
Resolving the Exemption Issue With Win/Win Approaches
Let us now consider how this analysis might apply to the HHS regulations mandating contraceptive services, with which our column opened. To begin with, we would exempt religious organizations from any duty to comply with the mandate when the organizations are operating programs with their own funds. If a religious organization operates a government-funded program, however, the mandate should remain in force.
The distinction we make here, between privately and publicly funded programs, is grounded in our basic unease about government’s commandeering of the resources of religious institutions to serve its own goals. Religious organizations have a religious liberty right to challenge government regulations that require them to use their own resources in violation of their religious commitments in order to further the state’s secular objectives.
Religious organizations do not, however, have a religious liberty right to use the government’s resources in order to further the organizations’ religious commitments when doing so would undermine the state’s public policy goals.
Religious Liberty as a Public Political Good
Next, we think the government should take appropriate steps to spread the cost of the religious accommodation to the general public, rather than having it fall much more heavily on the members of a smaller class. The most obvious and natural way to accomplish this goal would be for the federal government to use its own resources to provide health insurance coverage for contraceptive services for those women who are unable to receive the benefits of the HHS mandate because they happen to be employed by institutions who invoke the religious exemption discussed above.
It may be that President Obama’s proposal to shift the cost of contraceptive services to health-care insurers also achieves this cost-spreading goal to some extent, although we do note that it does so by imposing on the health-care providers directly, and in a way that seems historically unusual. (We are not aware of many examples in which the government directs a commercial enterprise to offer a service for free.)
So while we must think more about the compromise that President Obama offered before deciding whether it is acceptable, our key point here is that the government’s obligations do not end when it exempts religious institutions from regulations that unacceptably interfere with or burden their religious liberty. The government also owes a duty to those people who suffer burdens or lose benefits as a consequence of the state’s protecting religious liberty—and that duty requires the government to mitigate and spread these costs as much as possible.
The justification for spreading the cost of religious accommodations is straightforward. Fundamental rights such as religious liberty are public political goods that define the very nature of our community. We recognize, of course, that, in any given case, freedom of religion may be of much more value to certain individuals or groups than others. But the utility of these rights to particular individuals in specific situations should not lead us to ignore the intrinsic public value of living in a free society.
When the government incurs costs to acquire or protect public goods, it is appropriate for the community as a whole to share in the costs of its doing so—rather than leaving the cost to fall on a narrow class whose interests are sacrificed to the greater good. (That is the reason the Constitution prohibits “takings” for public use without “just compensation.”)
The government expenditures and cost-spreading we propose to make rights meaningful are not unique to the public good of religious liberty—they often are present in the free speech context as well. Governments spend substantial sums, for example, to provide adequate police forces to maintain order during large political demonstrations, or to protect small groups of unpopular speakers. In accepting these expenses as the price to be paid for living in a society committed to freedom of speech, we recognize implicitly that these costs may be allocated appropriately to the general taxpaying public. We suggest that a similar analysis applies to religious liberty.
Adjusting the Equities
Finally, we reach the third factor that is often overlooked in religious accommodation disputes. As a condition for receiving an exemption from the HHS contraceptive services mandate, religious organizations should agree to dedicate whatever funds they save from not having to provide the otherwise-required contraception coverage to some other public service, identified by the government, that is consistent with their beliefs. Remember, the justification behind the exemption for faith-based organizations is religious liberty. It does not extend to the cost savings that result from being freed from the burden of complying with legitimate regulations relating to public health goals, or any other permissible governmental objective.
Here again, our proposal is grounded on uncontroversial precedent. Our society has long accepted the legitimacy of requiring conscientious objectors, exempt from military conscription, to perform some kind of alternative service that is consistent with the dictates of their faith. This obligation is not a penalty imposed on religious pacifists. It is an equitable rule that recognizes that, in the name of religious liberty, the conscientious objector has been relieved of a serious material burden that has been imposed on a broad class of individuals. Accordingly, it is fair and just to require them to accept some other, comparable, civic obligation that does not require the violation of their religious beliefs.
We see no material difference between alternative service for those who are exempt from military service for religious reasons and alternative expenditures for public services by religious institutions that are exempt from costly regulatory mandates on religious liberty grounds.
We recognize that calculating and reallocating secular cost savings can be challenging and imprecise. But such imprecision should not prevent us from doing the best we can under the circumstances. Alternative service for conscientious objectors does not, and cannot, replicate the risks and burdens of military service. In these cases, perfect calibration in redirecting secular windfalls may be less important than achieving sufficient equities to demonstrate our recognition of the problem and our commitment to mitigating it.
The framework we describe in this article certainly won’t resolve all disputes about religious accommodations that will arise now and in the future. Those debates are as old as our country. This framework does, however, lead us to think about these issues in a principled manner, rather than relying on compromises that depend primarily on the political power of competing adversaries.
Certainly, our proposed framework protects religious liberty far more than the original HHS regulations did, and it also provides health insurance coverage for far more women than would receive benefits if all religious organizations burdened by these regulations were simply exempted from the mandate. President Obama’s compromise proposal seems, in some ways, to be a step in the right direction, although important questions as to how it will be implemented remain to be resolved. The compromise resonates with two of the principles we advocate: (1) it reduces state interference with the ability of religious institutions to follow the dictates of their faith, and (2) it mitigates and spreads the costs of the accommodation so that they do not fall exclusively on women who are employed by exempt religious institutions. Granted, its placement of the burden on insurance companies does raise issues of its own. But it may not be a bad beginning, even if it isn’t quite yet a complete solution to the problem.
Author: Alan E. Brownstein
Alan E. Brownstein, a nationally recognized Constitutional Law scholar, teaches Constitutional Law, Law and Religion, and Torts at UC Davis School of Law. While the primary focus of his scholarship relates to church-state issues and free exercise and establishment clause doctrine, he has also written extensively on freedom of speech, privacy and autonomy rights, and other constitutional law subjects. His articles have been published in numerous academic journals, including the Stanford Law Review, Cornell Law Review,UCLA Law Review and ConstitutionalCommentary. In 2008, Liberty was privileged to recognize Professor Brownstein for his passion and dedication to religious freedom at its annual Religious Liberty Dinner in Washington, D.C.