In the Washington Post, LawProf Frederick Mark Gedicks argues that if the Court rules in favor of Hobby Lobby, and holds that the owners cannot be forced to provide their employees with contraceptives, the court would be “directing the women who work for these businesses to bear the cost of the owners’ anti-contraception religion.” In support of that argument Gedicks cites a line of Supreme Court cases that hold that people cannot be forced to bear the cost of practicing religion.
On the other hand, the Supreme Court consistently has condemned government accommodations that shift the cost of practicing a religion from those who believe it to others who don’t. For example, the court struck down a state law that gave employees an absolute right not to work on their chosen Sabbath because of the burden it imposed on others. If most employees were Christian and took Sunday off, the statute would have forced the remaining, non-Christian employees to work every Sunday. This, the court said,violated the establishment clause: “The First Amendment . . . gives no one the right to insist that in pursuit of their own interests, others must conform their conduct to his own religious necessities.”
But nowhere did I see any mention of a really important fact–the state action doctrine! All of these cases involve laws passed by the government that burdens religion. Here, we are talking about the actions of Hobby Lobby, a private corporation, that owes absolutely zero constitutional duty to the religious beliefs of its employees. Zip. None. They have to comply with any applicable nondiscrimination laws, and cannot discriminate against employees based on their religion, and must make reasonable accommodations for religion. But this does not translate to some sort of constitutional protection against establishing a religion in a craft store.
Another point not mentioned in this debate is that no one is forced to work for Hobby Lobby. If the package of benefits (and that’s what we are talking about) at Hobby Lobby is so insufficient, the employees are free to work anywhere else. In contrast, of course, one cannot avoid the long arm of the government if you do not like its policies (other than foot voting).
What’s lurking underneath this column is a point made several times at Balkinzation. That the ACA changed everything! That we have a new “baseline.” Now healthcare is not merely some fringe benefit, but a legal right. And to deny employees this right is so significant. Specifically, as Joey Fishkin argued, in the “post-ACA world,” Hobby Lobby is “acting partly on behalf of the federal government.”
You see what happened there? This logic makes the WaPo argument work. Hobby Lobby is not some mere private actor, but is in essence a cog in the federal machinery that guarantees healthcare to anyone. Employees should no longer treat health insurance as some sort of benefit, but now must demand it–and the employers’ religious liberty should not stand in that way.
I see strong parallels to arguments concerning the ability of religious employers to terminate non-religious employees for religious reasons. Though, employment in that context is not (yet) viewed as some sort of right that the employer must offer. (In many countries in Europe, this is the prevailing wisdom).
The significance of Hobby Lobby, I have come to realize, goes far beyond RFRA or birth control pills. Instead, the ruling would either legitimize or challenge the consolidation of the relationship between the individual, the employer, and the state, under the auspices of the ACA, in a way we have not yet seen.
Update: I respond to Professor Gedick’s comments here.