An irresponsible sentence that Justice Samuel Alito wrote eight years ago may now excuse religious people from nearly every legal obligation they have, so long as a hypothetical, nonexistent government program could substitute for it.
That became clear this week when Judge Reed O’Connor declared in Braidwood Management v. Becerra that employers with religious objections may offer health plans without drugs that prevent transmission of HIV, contraception, the HPV vaccine and screenings and behavioral counseling for STDs and drug use. The employers claim that providing such coverage makes them complicit in homosexual behavior, drug use and sexual activity outside of marriage.
The plaintiffs obviously were shopping for a favorable judge when they brought their case to O’Connor, who has repeatedly stretched the law in ways that disrupt ObamaCare. Here, however, his extravagant conclusion may well be sustained by the Supreme Court, which has embraced an increasingly extreme account of religious liberty. (He also hamstrung the statute in a different way, involving the administrative capacities of agencies, as Ian Millhiser has explained.)
To understand what just happened, it is necessary to look back to a 2014 Supreme Court decision, Burwell v. Hobby Lobby Stores. There the court allowed a for-profit corporation with religious owners to deny contraceptive coverage to its employees. The court relied on the federal Religious Freedom Restoration Act (RFRA), which exempts religious objectors to federal law unless the burden on them is necessary to a compelling government interest.
There was already an accommodation for religious nonprofits, which used an alternative mechanism to guarantee workers the disputed coverage. If that program were extended to Hobby Lobby Stores, Justice Alito wrote for the court, the impact on its employees would be “precisely zero.”
But Alito did not stop there. His opinion mused that the “most straightforward way” of providing coverage “would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” He rejected the Obama administration’s claim that “RFRA cannot be used to require creation of entirely new programs.”
The court split 5-4, and the swing vote, Justice Anthony Kennedy, declared that he was skeptical about the “imposition of a whole new program or burden on the Government.” In Hobby Lobby, he declared, there happened to be “an existing, recognized, workable, and already-implemented framework” for accommodating the religious objection. This fact “might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.”
Justice Ginsburg, dissenting, was similarly skeptical: “[W]here is the stopping point to the ‘let the government pay’ alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work?” She might have enumerated other costly mandates, such as landlords’ obligations to keep premises safe, or employers’ duty to purchase expensive safety equipment. And what about religious people who object to paying taxes?
Kennedy has since retired, replaced by Neil Gorsuch, who has never voted to deny any religiously based claim. He is willing to expose frail patients to COVID-19 for the sake of religious liberty. Alito now proposes, on the basis of weak originalist evidence, to constitutionalize RFRA and require religious exemptions for all laws, state and federal alike.
Alito’s dictum was the basis for Judge O’Connor’s decision last week. Quoting “Hobby Lobby,” O’Connor wrote that the Biden administration had not “shown that the government would be unable to assume the cost of providing [HIV preventive] drugs to those who are unable to obtain them due to their employers’ religious objections.”
And that was that. With this one sentence, the employees’ coverage disappeared. Gone are Kennedy’s concerns about the difficulty and expense of demanding entire new programs. Or the certainty that those programs will not in fact ever be enacted, so that the employees must simply do without. And a majority of the new, extremely conservative court appears likely to agree with Alito.
I’ve focused at length on what Alito wrote in Hobby Lobby because O’Connor’s decision shows that it was a time bomb, one now in the process of exploding. It is available in any case where any obligation could imaginably be fulfilled by the government.
Ginsburg was right that there is no stopping point. Perhaps emergency rooms in religious hospitals can turn away women hemorrhaging from failed pregnancies, because government could always build emergency rooms of its own.
There is today a serious danger to religious liberty. But it is coming from the Supreme Court, which has been construing it to mean a right to hurt people. If this is now its authoritative meaning, then the longstanding, broad consensus that supported it will collapse.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.