Discriminating Against Religion, or Using Religion to Discriminate?

The Alleged Conflict Between Free

Exercise and PPACAs Contraception Mandate

Julia Zalenski

ABSTRACT The Patient Protection and Affordable Care Act (PPACA) mandates that employers provide
insurance coverage for contraception. Some religiously-affiliated employers have sought exemptions
from this mandate, claiming that it violates their right to free exercise guaranteed by the First
Amendment. Using traditional free exercise analysis, this paper analyzes these employers claims for an
exemption from PPACA. The paper argues that a free exercise exemption from a law of general
application that burdens those persons not seeking the exemption is an unsound way to accommodate
societal interests in 1) freedom of religion and 2) fair allocation of social costs. To that end, this paper
proposes an innovative burdens analysis for such free exercise exemption claims.

Keywords: free exercise, First Amendment, law and religion, Patient Protection and Affordable Care Act

I. INTRODUCTION

The question of whether religiously-affiliated employers can be exempted from providing

insurance coverage for contraception, when such coverage is required by the Patient Protection

and Affordable Care Act (PPACA)1 is a fundamental constitutional inquiry that cuts to the heart

of the free exercise clause. Namely, when can religiously-affiliated employers acquire an

exemption from a law of general application in the name of free exercise of religion? Phrased

another way, canor mustthe federal government permit religiously-affiliated employers to

impose their religious beliefs upon their employees in contravention of a law of general

application?

This paper will address the conflict between the right to free exercise of religion asserted

by these religiously-affiliated employers and the contraception coverage mandate in PPACA, a

 1 42 U.S.C. 300gg-13(a)(4) (2010).

Electronic copy available at: http://ssrn.com/abstract=2354993

secular law of general application. The paper will argue that the free exercise clause does not

require the federal government to grant religiously-affiliated employers an exemption from

PPACAs contraception coverage mandate. Further, it will argue that the government should not

grant such an exemption from a law of general application, and that free exercise claims for

exemptions from laws of general application should be subject to a burdens analysis. In this case,

a burdens analysis demonstrates that an exemption from PPACAs contraception coverage

mandate for religiously-affiliated employers would be fundamentally unacceptable.

Section II will first discuss the challenges to PPACAs contraception coverage mandate.

It will then discuss how free exercise exemptions from laws of general application have been

treated in the past, focusing on the seminal Supreme Court cases that have defined the issue as

well as on the Religious Freedom Restoration Act. Section III will first analyze the free exercise

exemption from PPACA claimed by religiously-affiliated employers under existing precedent.2

Second, it will argue that claims for free exercise exemptions from laws of general application

should be subject to a burdens analysis, and will argue that under such an analysis, an exemption

is unjustifiable. The paper will conclude in Section IV that an exemption from PPACA for

religiously-affiliated employers is unacceptable and should not be granted.

II. BACKGROUND

A. The Patient Protection and Affordable Care Act Contraception Mandate

The Patient Protection and Affordable Care Act was passed on March 23, 2010.3 Among

its many provisions is a requirement that employers group health plans cover preventive

2 This paper assumes that religiously-affiliated employers have and can

assert free exercise rights.

3 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).

care for women.4 PPACA provides specifically that group health plans must provide coverage

for and . . . not impose any cost sharing requirements for(4) with respect to women, such

additional preventive care and screenings . . . as provided for in comprehensive guidelines

supported by the Health Resources and Services Administration . . . .5 The prohibition on cost

sharing requirements means that women cannot be charged additional fees for this coverage.6 In

January 2011, the U.S. Department of Health and Human Services (HHS) promulgated a rule

stating that student health insurance plans must cover these preventive services under PPACA.7

In August 2011, HHS promulgated regulations stating the preventive care that health insurance

plans would be required to cover under PPACA would include all Food and Drug

Administration-approved contraceptive methods, sterilization procedures, and patient education

and counseling for all women with reproductive capacity.8

Acknowledging the potentialor assertedconflict between the mandated contraception

coverage and the beliefs of religiously-affiliated employers, the government created a regulatory

exemption from PPACAs contraception mandate for certain employers.9 This regulation allows

the Health Resources and Services Administration to establish exemptions from the

4 42 U.S.C. 300gg-13(a)(4) (2010).

5 Id.

6 TIMES TOPICS, N.Y. TIMES, Contraception and Insurance Coverage (Religious Exemption Debate),
updated May 21, 2012,
http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_
managed_care/ health_care_reform/contraception/index.html.

7 Student Health Insurance Coverage (CMS-9981-F), Unified Agenda 0938-AQ95, FED. REGISTER,
available at http://federalregister.gov/r/0938-AQ95 (codified at 45 C.F.R. 144 (2010), 45 C.F.R. 147
(2010)).

8 Womens Preventive Services: Required Health Plan Coverage Guidelines, U.S. DEPT OF HEALTH AND
HUMAN SERVS., HEALTH RESOURCES AND SERVS. ADMIN., http://www.hrsa.gov/womensguidelines/.

9 45 C.F.R. 147.130(a)(iv)(A)-(B) (2010).

contraception mandate for religiously-affiliated employers.10 Employers qualify for this

exemption if they meet four criteria: 1) [t]he inculcation of religious values is the purpose of the

organization[;] 2) [t]he organization primarily employs persons who share the religious

tenets of the organization[;] 3) [t]he organization serves primarily persons who share the
religious tenets of the organization[;] 4) [t]he organization is a nonprofit organization . . . .11

Though this regulatory exemption is intended to accommodate the free exercise rights of

religiously-affiliated employers, certain employers who view the contraception mandate as

violative of their free exercise rights do not meet the required criteria.12

B. Challenges to the Patient Protection and Affordable Care Acts Contraception Mandate

As of October 25, 2012, there were over thirty-five lawsuits challenging PPACAs

contraception mandate.13 These legal challenges have been brought by a wide variety of

employers who share the same problem: they believe that providing insurance with contraception

coverage violates their protected religious beliefs, but they do not meet the regulatory exemption

10 Id.

11 Id.

12 See, e.g., Complaint and Demand for Jury Trial at 1920, Univ. of Notre Dame v. Sebelius, No.
3:2012cv00253, (N.D. Ind., May 21, 2012), available at
http://opac.nd.edu/assets/69013/hhs_complaint.pdf.

13 Brigitte Amiri & Sarah Lipton-Lubet, Another Challenge to the Federal Contraception Rule, Another
Friend-of- the-Court Brief, ACLU.ORG, http://www.aclu.org/blog/religion-belief-reproductive-
freedom/another-challenge- federal-contraception-rule-another.

for religiously-affiliated employers.14 The plaintiffs include secular, for-profit companies15 as

well as religiously-affiliated institutions whose primary function is not necessarily religious.16

The substance of the challenges begins with the proposition that the employers religious

beliefs prohibit use of contraception for the purpose of preventing pregnancy.17 The employers

argue that they cannot subsidize, facilitate, and/or sponsor coverage for contraception without

violating their sincerely held religious beliefs,18 so the contraception mandate violates their right

to free exercise.19 If the mandate substantially burdens the employers free exercise, the

government must demonstrate that the mandate is justified by a compelling interest and is

narrowly tailored to achieve that interest.20 The employers argue that the mandate substantially

burdens their free exercise, that the government has no compelling interest in requiring the

employers to provide contraception coverage in violation of their religious beliefs, and that the

contraception mandate is not narrowly tailored to achieve a compelling interest.21 The employers

14 See HHS Mandate Information Central, BECKET FUND FOR

RELIGIOUS LIBERTY, http://www.becketfund.org/hhsinformationcentral/.

15 Memorandum and Order, OBrien v. U.S. Dept of Health and Human Servs., No. 4:12-CV-476 (CEJ),
(E.D. Mo., Sept. 28, 2012), available at
http://www.aclu.org/files/assets/09.28.12_final_memo_and_order_on_dismissal.pdf.

16 Complaint and Demand for Jury Trial, Univ. of Notre Dame v. Sebelius, No. 3:2012cv00253, (N.D. Ind.,
May 21, 2012), available at http://opac.nd.edu/assets/69013/hhs_complaint.pdf.

17 See, e.g., id. at 2829 (noting that the Catholic Church does not oppose the use of drugs primarily
indicated for contraception to treat another medical condition).

18 See, e.g., id. at 29.

19 Id. at 31.
20 Memorandum and Order at 7, OBrien v. U.S. Dept of Health and Human Servs., No. 4:12-CV-476
(CEJ), (E.D. Mo., Sept. 28, 2012), available at
http://www.aclu.org/files/assets/09.28.12_final_memo_and_order_on_dismissal.pdf.

21 See, e.g., Complaint and Demand for Jury Trial at 31, Univ. of Notre Dame v. Sebelius, No.
3:2012cv00253, (N.D. Ind., May 21, 2012), available at
http://opac.nd.edu/assets/69013/hhs_complaint.pdf.

therefore argue that PPACAs contraception mandate is an impermissible burden on their free

exercise of religion.22

In sum, then, these free exercise claims hinge on the viability of the argument that

requiring employers to provide their employees with health insurance that gives those employees

the option of using contraception without paying additional fees or copays substantially burdens

the employers free exercise of religion, based on the employers religious beliefs that

contraception is contrary to their churches tenets. Furthermore, the claims depend on the

argument that the government does not have a compelling interest in requiring employers to

provide contraception coverage to their employees, and that the government mandate is not

narrowly tailored to achieve its interest. Of the few dozen challenges brought to date, several

have been dismissed for procedural reasons23 and one has been dismissed on the merits.24 In one

instance, however, the court granted a temporary injunction protecting the employer from federal

penalties while their case goes forward.25

The content of the claim does not appear to depend on the identity of the employerthe

nominally secular business employers rely on substantially the same argument that religiously-

affiliated employers doexcept insofar as religiously-affiliated employers may have more

evidence to bring to bear on certain elements of their claim.26 This paper will not attempt to sort

22 Id.

23 See Louise Radnofsky, School Tries New Tack in Contraceptive Fight, WASH. WIRE, July 18, 2012,
http://blogs.wsj.com/washwire/2012/07/18/school-tries-new-tack-in-contraceptive-fight/.

24 Memorandum and Order, OBrien v. U.S. Dept of Health and Human Servs., No. 4:12-CV-476 (CEJ),
(E.D. Mo., Sept. 28, 2012), available at
http://www.aclu.org/files/assets/09.28.12_final_memo_and_order_on_dismissal.pdf.

25 Newland v. Sebelius, No. 1:12cv1123JLK, 2012 WL 3069154 (D. Colo., July 27, 2012).

26 Compare Complaint and Demand for Jury Trial, Univ. of Notre Dame v. Sebelius, No. 3:2012cv00253,
(N.D. Ind., May 21, 2012), available at http://opac.nd.edu/assets/69013/hhs_complaint.pdf with
Memorandum and Order, OBrien v. U.S. Dept of Health and Human Servs., No. 4:12-CV-476 (CEJ), (E.D.
Mo., Sept. 28, 2012), available at
http://www.aclu.org/files/assets/09.28.12_final_memo_and_order_on_dismissal.pdf.

through the potentially complex distinctions between secular companies and religiously-

affiliated institutions in the context of this free exercise claim. The argument advanced in this

paper likely leads to the same conclusion regardless of the identity of the employer, so this paper

will treat the free exercise claim as a general question that does not depend on the particular
affiliation of the employer.

C. Free Exercise Exemptions from Laws of General Application

In certain respects, the question posed by the challenges to the contraception mandate are

new. Previous cases have largely focused on exemptions from laws that primarily affected the

persons bringing the claim: for example, in Employment Division v. Smith, a controlled substance

law was the law of general application at issue, and the plaintiffs sued for an exemption based on

the burden the law posed to their own practice of using peyote.27 So, a more analogous case

would be if PPACA required individuals to use or abstain from using contraception. However,

the challenges to PPACA certainly demand an exemption from a law of general applicability,

and so the previous case law on that subject applies. This Section will review the most important

aspects of that case law and will briefly discuss the Religious Freedom Restoration Act.

1. Free exercise exemptions from laws of general application in case law

In 1878, in Reynolds v. United States, the Supreme Court held unambiguously that

individuals cannot be exempted from laws of general application on the basis of religious belief,

saying that [t]o permit this would be to make the professed doctrines of religious belief superior

to the law of the land, and in effect to permit every citizen to become a law unto himself.

Government could exist only in name under such circumstances.28 Almost 100 years later, in

27 Employment Div. v. Smith, 494 U.S. 872 (1990).

28 Reynolds v. United States, 98 U.S. 145, 167 (1878).

8

Wisconsin v. Yoder, the Supreme Court demonstrated a greater susceptibility to claims for

exemptions, and held under the particular circumstances of the case that the state had failed to

sufficiently demonstrate how its interest in compulsory education would be adversely affected

by granting an exemption from compulsory high school education to the Amish.29 Yoder would

therefore suggest that there are some circumstances under which citizens can become a law unto

[themselves],30 and can be exempted from laws of general application.

However, in 1990, in Employment Division v. Smith, the Supreme Court rejected the

possibility of free exercise exemptions from laws of general application. Smith held that a test

designed to balance an individuals free exercise of religion and laws of general application,

when the two conflict, is unworkable.31 In so holding, the Court stated that [t]he government's

ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to

carry out other aspects of public policy, cannot depend on measuring the effects of a

governmental action on a religious objector's spiritual development.32 Smith was characterized

as having overturned Sherbert v. Verner, which held that government must demonstrate a

compelling interest before it restricts free exercise.33 The Court suggested in Smith that the

proper avenue for relief when individuals find their religious liberties threatened by laws of

general application is the legislature.34 This approach represents an interest-group theory of

legislation: though it is less likely to protect politically powerless groups seeking a judicial

29 Wisconsin v. Yoder, 406 U.S. 205, 236 (1972).

30 Reynolds v. United States, 98 U.S. 145, 167 (1878).

31 Employment Div. v. Smith, 494 U.S. 872, 88688 (1990).

32 Id. at 885 (citing Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 at 451, (1988)).

33 Sherbert v. Verner, 374 U.S. 389 (1963); Amy Adamczyk, John Wybraniec, & Roger Finke, Religious
Regulation and the Courts: Documenting the Effects of Smith and RFRA, 46 J. Church & State 237 (2004).

34 Employment Div. v. Smith, 494 U.S. 872, 890 (1990).

exemption from laws of general application, it should also reflect a judicial willingness to respect

decisions made by other branches of government with regard to such exemptions.35

2. The Religious Freedom Restoration Act

Following Smith, there was a significant outcry against the Supreme Courts decision to

essentially disregard the effect of laws of general application on free exercise of religion.36

Pursuant to the general view that the Supreme Courts decision was misguided and failed to

adequately protect the free exercise of religion guaranteed by the Constitution,37 Congress passed

the Religious Freedom Restoration Act (RFRA) in 1993.38 RFRA provided that the government

shall not substantially burden a person's exercise of religion even if the burden results from a

rule of general applicability, except as provided in subsection (b).39 Subsection (b) provided that
the government may substantially burden a person's exercise of religion only if it demonstrates

that application of the burden to the person(1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that compelling governmental

interest.40

RFRA was, in other words, an attempt to restore the compelling interest test described in

Sherbert.41 However, the statute was constitutionally flawed, and in Boerne v. Flores, the

35 See MICHAEL T. HAYES, LOBBYISTS AND LEGISLATORS 99102

(1981).

36 Amy Adamczyk, John Wybraniec, & Roger Finke, Religious Regulation and the Courts: Documenting
the Effects of Smith and RFRA, 46 J. Church & State 237 (2004).

37 Id.

38 Religious Freedom Restoration Act, Pub.L. 103-141, 107 Stat. 1488 (1993).

39 42 U.S.C. 2000bb-1(a) (2006).

40 42 U.S.C. 2000bb-1(b) (2006).

41 Amy Adamczyk, John Wybraniec, & Roger Finke, Religious Regulation and the Courts: Documenting
the Effects of Smith and RFRA, 46 J. Church & State 237 (2004).

10

Supreme Court held that RFRA exceeded Congresss power under 5 of the Fourteenth

Amendment.42 Boerne invalidated RFRA, at least as applied to state governments.43 However,

the Supreme Court has not yet decided whether RFRA is constitutionally enforceable against the
federal government. Because RFRA may still remain in force with regard to the federal

government, it is relevant to the challenges to PPACAs contraception mandate.44 Indeed, the

complaints discussed in Section B of this paper allege violations of RFRA, though they do not

rely exclusively on it in their demands for relief.45

III. ANALYSIS

This Section argues that religiously-affiliated employers who claim that PPACAs

contraception mandate violate their free exercise rights are not entitled to an exemption from

PPACA. Further, it argues that religiously-affiliated employers should not receive such an

exemption, because an exemption would be unjustifiable under the burdens analysis proposed

here. The Section will first analyze the claim for an exemption under Smith, the governing case

law, and RFRA. It will then explain why a burdens analysis would improve the analytical

framework for this issue, and will discuss why such an analysis clearly demonstrates that an

exemption from PPACAs contraception mandate for religiously-affiliated employers is

unsupportable.

A. Under Smith and RFRA, an Exemption from the Contraception Mandate for Religiously- Affiliated
Employers is Not Required

42 Boerne v. Flores, 521 U.S. 507, 536 (1997).

43 Id.

44 See Kikumura v. Hurley, 242 F.3d 950 (10th Cir., 2001).

45 See, e.g., Complaint and Demand for Jury Trial, Univ. of Notre Dame v. Sebelius, No. 3:2012cv00253,
(N.D. Ind., May 21, 2012), available at http://opac.nd.edu/assets/69013/hhs_complaint.pdf;
Memorandum and Order at 7, OBrien v. U.S. Dept of Health and Human Servs., No. 4:12-CV-476 (CEJ),
(E.D. Mo., Sept. 28, 2012), available at
http://www.aclu.org/files/assets/09.28.12_final_memo_and_order_on_dismissal.pdf.

11

Under Smith, laws of general applicationas their name would suggestapply without

exception to all persons regardless of how the law impacts religious exercise.46 It requires little

analysis, then, to conclude that under Smith no exemption would be required for religiously-

affiliated employers who claim that PPACAs contraception mandate violates their right to free

exercise of religion. Smith clearly suggests that the appropriate avenue for obtaining exemptions

from laws of general application is through the political process, and that no judicial relief is

available for the objecting employers.47 Therefore, if Smith is the applicable law, the free

exercise claim of the religiously-affiliated employers will not result in an exemption from

PPACA, and they will be left to seek whatever relief they can obtain through the political

branches of government.

If RFRA does not apply in this casei.e., if the Supreme Court were to rule that RFRA is

unconstitutional as applied to the federal government as well as to the statesthe outcome under

the Smith rule would control.48 If RFRA does apply to the challenges to PPACA, however, the

outcome would likely be the same as under Smiththe contraception mandate under PPACA
probably meets the requirements of the RFRA analysis.

First, RFRA requires that the law of general application in question substantially

burden a persons exercise of religion.49 The religiously-affiliated employers challenging the

PPACA contraception mandate assert that contraception violate[s] [their] [religious] beliefs and

46 Employment Div. v. Smith, 494 U.S. 872, 88688 (1990).

47 Id. at 890.

48 See Boerne v. Flores, 521 U.S. 507, 515 (1997).

49 42 U.S.C. 2000bb-1(a) (2006).

12

tenets.50 The employers assert that PPACAs requirement that the employers include coverage

for contraception in the health insurance plans they offer their employees obliges them to fund

practices their religious beliefs forbid.51 The critical question, then, is whether requiring

employers to fund health insurance plans that include coverage for health care that is contrary to

the employers religious beliefs constitutes a substantial burden on their free exercise of

religion.

It is difficult to see how merely requiring employers to provide health insurance plans

that cover contraception without additional charges constitutes a substantial burden.

Presumably, it is the specific use of contraceptives to prevent pregnancy that employers find
objectionable.52 If that is the case, to assert that such a substantial burden exists, the employers

would have to have reason to believe that their employees would use their health insurance

benefits to obtain contraception for the purpose of preventing pregnancy. If the employees did

not do so, nothing contrary to the employers religious beliefs would actually occur, and there

could be no substantial burden on the employers religious exercise.

Furthermore, it would be logical to ask whether the employees would obtain

contraception because that care is now covered by their employer-based health insurance. If the

new coverage does not cause the behavior that offends the employers religious exercise,

requiring that coverage cannot be a substantial burden on religious exercise.53 In other words,

without the causation element, employers would struggle to distinguish including contraception

50 See, e.g., Complaint and Demand for Jury Trial at 38, Univ. of Notre
Dame v. Sebelius, No. 3:2012cv00253, (N.D. Ind., May 21, 2012), available at
http://opac.nd.edu/assets/69013/hhs_complaint.pdf

51 Id. at 30.

52 Id. at 29.

53 See Frederick Mark Gedicks, With Religious Liberty for All: A Defense of the Affordable Care Act's
Contraception Coverage Mandate, AM. CONST. SOCY FOR LAW AND POLY at 10, October 2012
(forthcoming).

13

coverage in health care plans and paying employees a salary that the employees could use to
purchase health care the employers find religiously offensive. It is therefore unlikely that the

religiously-affiliated employers challenging the contraception mandate can demonstrate a

substantial burden on their religious exercise.

Even if religiously-affiliated employers could demonstrate a substantial burden on their

religious exercise, they would not be entitled to an exemption from PPACA. RFRA provides that

a law of general application may substantially burden religious exercise if the government can

demonstrate that the law furthers a compelling governmental interest and is narrowly tailored to

achieve that interest.54 It is important to clarify that the government does not have to prove a

compelling interest in substantially burdening religious exercise; rather, the compelling interest

analysis focuses on the purpose of the law of general application.55 In this case, the government

can probably show that PPACAs contraception mandate furthers a compelling governmental

interest, and that it is narrowly tailored.

It is well-established that the government has a compelling interest in ensuring that its

citizens have adequate access to health care.56 Because readily available, affordable

contraception is intimately related to all persons health and welfareparticularly, but by no

means exclusively, womens health and welfarethe government has a compelling interest in

ensuring that all persons have access to contraception.57 Affordable, accessible contraception

54 42 U.S.C. 2000bb-1(b) (2006).

55 Cf. Complaint and Demand for Jury Trial at 31, Univ. of Notre Dame v. Sebelius, No. 3:2012cv00253,
(N.D. Ind., May 21, 2012), available at http://opac.nd.edu/assets/69013/hhs_complaint.pdf.
56 See Roe v. Wade, 410 U.S. 113, 153, 163 (1973) (recognizing that the state has a compelling interest
in protecting the health and well-being of persons).

57 Frederick Mark Gedicks, With Religious Liberty for All: A Defense of the Affordable Care Act's
Contraception Coverage Mandate, AM. CONST. SOCY FOR LAW AND POLY at 12, 15, October 2012
(forthcoming).

14

allows women to control their reproductive, physical, and mental health by avoiding pregnancy

entirely, spacing pregnancies appropriately, or using contraception to avoid other serious medical

conditions.58 Furthermore, the effects of accessible contraception reverberate beyond health care:

access to contraception can facilitate equal participation in the workforce, in education, and in

other spheres of public life.59 In sum, access to affordable contraception is indispensable to

ensuring the health and welfare of all persons, and as such is a compelling interest that justifies

PPACAs mandate.

Whether PPACAs mandate is narrowly tailored to achieve this compelling interest poses

a somewhat more difficult question. For a statute to be narrowly tailored, it must be neither over-

inclusive nor under-inclusive.60 The statute must also be the least restrictive means of furthering

the compelling government interest.61 Given that the governments compelling interest is in

universalizing affordable access to contraception, PPACAs mandate is not over- or under-

inclusive.62 A substantial percentage of health insurance in the United States is employer-based.

Therefore, PPACA could not achieve the governments interest without a wide-ranging mandate
that applies to as many employers as possible.63 PPACAs mandate is narrowly tailored, because

58 Id.

59 Id.

60 Republican Party of Minn. v. White, 416 F.3d 738, 751 (8th Cir. 2005).

61 U.S. v. Hardman, 297 F.3d 1116, 112930 (10th Cir. 2002).

62 Fact Sheet: Womens Preventive Services and Religious Institutions, OFFICE OF THE PRESS
SECRETARY, THE WHITE HOUSE, Feb. 10, 2012, http://www.whitehouse.gov/the-press-
office/2012/02/10/fact-sheet-women-s- preventive-services-and-religious-institutions; Denying
Coverage of Contraceptives Harms Women, NATIONAL WOMENS LAW CENTER, Aug. 13, 2012,
http://www.nwlc.org/resource/denying-coverage-contraceptives-harms- women; The Facts on Birth
Control Coverage for Women, PLANNED PARENTHOOD,
http://www.plannedparenthoodaction.org/positions/facts-on-birth-control-coverage-for-women-
1117.htm (last visited Nov. 1, 2012).

63 Elizabeth Mendes, In U.S., Employer-Based Health Insurance Declines Further, GALLUP WELLBEING,
June 17, 2011, http://www.gallup.com/poll/148079/employer-based-health-insurance-declines-
further.aspx.

15

it is neither over-inclusive nor under-inclusive with regard to the compelling governmental

interest it serves.

As a plaintiff challenging PPACAs mandate, the University of Notre Dame asserts that

the mandate is not narrowly tailored because the government did not choose the least restrictive

means of furthering its interest.64 The University asserts that at a minimum, it could create a
broader exemption for religious employers.65 However, the fact that the government could have

created a broader exemption does not mean that it was required to do so to make the law

narrowly tailored.66 If the compelling government interest is to make affordable access to

contraception universal, than the law must, by definition, reach the broadest possible number of

employer-based health insurance programs. The exemption from the contraception mandate that

is included in PPACA demonstrates the laws narrow tailoring, as it exempts only religious

persons and organizations who do not externalize the costs of their religious beliefs and practices

onto others who do not share them.67 Because PPACAs contraception mandate simultaneously

extends to all employers necessary to achieve its compelling interest and exempts those who can

be exempted without harming that interest, the law is narrowly tailored.

PPACAs contraception mandate does not constitute a substantial burden on religious

exercise. Even if it did constitute such a burden, the mandate serves a compelling governmental

64 Complaint and Demand for Jury Trial at 31, Univ. of Notre Dame v.
Sebelius, No. 3:2012cv00253, (N.D. Ind., May 21, 2012), available at
http://opac.nd.edu/assets/69013/hhs_complaint.pdf.

65 Id.

66 See, e.g., Employment Div. v. Smith, 494 U.S. 872 (1990) (though the government could have created
a broad exemption for Native American peyote use, it was not constitutionally required to do so).

67 Frederick Mark Gedicks, With Religious Liberty for All: A Defense of the Affordable Care Act's
Contraception Coverage Mandate, AM. CONST. SOCY FOR LAW AND POLY at 1, October 2012
(forthcoming).
16

interest and is narrowly tailored to achieve that interest. The mandate therefore passes the test set

forth in RFRA.

B. Claims for Exemptions from Laws of General Application Should be Subject to a Burdens Analysis

What past free exercise case law and RFRA fail to take into account, however, is the

significant burden an exemption from PPACA would place on persons covered by the exempted

insurance plans and, therefore, denied insurance coverage for contraception and forced to pay

additional out-of-pocket costs to obtain it. Any analysis of the religiously-affiliated employers

claim for an exemption based on their rights to free exercise should account for the burden an

exemption would place on those persons. Free exercise claims for exemptions from laws of

general application should be subject to a burdens analysis. Where, as here, the exemption would

significantly burden persons not making the free exercise claim, the exemption should be

impermissible.

This proposed burdens analysis is justified and triggered by the fundamental

constitutional principle that government cannot endorse or support a particular set of beliefs over

others.68 Under the establishment clause, the government cannot privilege certain religious

beliefs over non-religious beliefs or different religious beliefs absent a compelling interest for

doing so.69 The necessary corollary to this principle is that a government-authorized burden on

one set of otherwise permissible beliefs or actions in favor of a particular religious belief
 68 Sherbert v. Verner, 374 U.S. 389, 402, 407 (1963); Walz v. Tax
Commn of City of New York, 397 U.S. 664, 695 (1970) (Harlan, J., concurring) (The fullest realization of
true religious liberty requires that government neither engage in nor compel religious practices, that it
effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no
religious belief. (quoting School Dist. of Abington v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J.,
concurring))); RANDALL P. BEZANSON, HOW FREE CAN RELIGION BE? 23031 (2006).

69 See id.

17

unconstitutionally privileges the latter set of beliefs.70 A burdens analysis in the context of free

exercise claims for exemptions from laws of general application would allow the government to

assert its interest in avoiding a potentially unconstitutional preference for one set of religious

beliefs, as well as its interest in enforcing laws of general application. It would also allow the

government to articulate and protect the interests of persons who do not have the opportunity to

be party to the free exercise case, but whose interests are nonetheless implicated. In this sense, a

burdens analysis would allow the establishment clause to inform the analysis of the free exercise

claim.

A burdens analysis would also provide a structural rationality for free exercise exemption

cases, without requiring courts to discuss the merits of the religious exercise itself. Historically,

the Court has relied on highly technical constructions to justify exemptions,71 or has sidestepped

and deferred to the legislature to justify denying exemptions.72 These analytical gymnastics have

allowed free exercise jurisprudence to function, but have failed to provide unifying principles for
when exemptions from laws of general application are constitutionally acceptable. A burdens

analysis in such cases could provide such a unifying principle, along with much-needed clarity.

For example, in Wisconsin v. Yoder, the Court relied on a narrow construction of the states

interest in compulsory education for Amish children between the ages of fourteen and sixteen to

find that the Amish should be entitled to an exemption from the states compulsory education

laws,73 while implicitly basing that decision at least in part on their understanding that the Amish

70 See id.

71 Wisconsin v. Yoder, 406 U.S. 205, 23536 (1972); BEZANSON, supra note 68, at 64.

72 Employment Div. v. Smith, 494 U.S. 872, 890 (1990).

73 Yoder, 406 U.S. at 23536.

18

community in question was peaceable and productive.74 A burdens analysis in this case would

have allowed the Court to explicitly take notice of the Amish communitys law-abiding nature

and contributions to society in support of a finding that the exemption from the compulsory

education law burdenedat mostonly the Amish themselves.75 A burdens analysis would

allow the Court to unify its jurisprudence on free exercise exemptions around the basic principle

that free exercise exemptions from laws of general application are acceptable if they do not

burden persons who do not seek the exemption.76

In certain respects, a burdens analysis in free exercise exemption cases is analogous to

the endorsement test proposed by Justice OConnor for use in establishment clause cases.77 In

Lynch v. Donnelly, Justice OConnor proposed shifting the analysis in establishment clause cases

to ask whether a governments action could be perceived as endorsing religion.78 In other words,

her analysis focused in part on the burden that government action places on persons when that

action appears to endorse religion.79 Similarly, a burdens analysis in free exercise exemption

cases would ask not just whether the persons or institutions claiming the exemption face a

substantial burden under the law of general application, but whether an exemption from the law

would burden persons not seeking that exemption. The next Section demonstrates how that

analysis could function.

74 BEZANSON, supra note 68, at 71.

75 In other words, the Court could have concluded that the Amish were productive members of society
even without the additional years of high school education, and therefore the only social cost associated
with the free exercise exemption was the cost to the Amish themselves of forgoing education.

76 The cost to the persons who are seeking the exemption is a matter of personal choice, and is not
relevant to the burdens analysis.

77 Lynch v. Donnelly, 465 U.S. 668, 689 (1984).

78 Id.

79 See id.

19
1. The proposed burdens analysis

Burdens analyses are familiar tools in a wide variety of legal contexts, including the

religion guaranteesfor example, Section III.A of this paper discussed the burdens analysis

required by RFRA.80 The burdens analysis proposed in this paper draws on those analyses and

applies them to the particular context of free exercise claims for exemptions from laws of general

application. This Section will explain the proposed burdens analysis chronologically to

demonstrate how the analysis would function.

The hypothetical plaintiff in these cases is one who is required by a law of general

application to door not dosomething that he feels burdens his free exercise rights.

Accordingly, the plaintiff sues the appropriate parties, or is charged with violating the law.81

Once in court, the plaintiff asserts 1) that the law substantially burdens his free exercise rights,

and 2) that the government cannot demonstrate that the law furthers a compelling a governmental

interest and is narrowly tailored.82 At this stage, the plaintiff has the burden of showing that the

law of general application substantially burdens his free exercise.

Once the plaintiff has demonstrated a substantial burden on his free exercise, the burden

of proof shifts to the government.83 The government must show, under free exercise principles,

that the law of general application furthers a compelling governmental interest, and is narrowly

tailored to achieve that interest.84 Thus far, only the free exercise clause has been implicated by

80 42 U.S.C. 2000bb-1(a) (2006).

81 See, e.g., Reynolds v. United States, 98 U.S. 145, 167 (1878); Complaint and Demand for Jury Trial at
1920, Univ. of Notre Dame v. Sebelius, No. 3:2012cv00253, (N.D. Ind., May 21, 2012), available at
http://opac.nd.edu/assets/69013/hhs_complaint.pdf.

82 Supra Part III.A.

83 Id.

84 Id.

20

the case. However, at this point the government should also be able to invoke the burdens

analysis proposed here, asserting its interest in avoiding preferential treatment for a particular set

of religious beliefs under a law of general application as well as the interests of the other persons

who would be burdened by the plaintiffs claimed exemption. In a sense, the burdens analysis

would allow the government to assert the establishment clause as an affirmative defense to the

plaintiffs free exercise claim. So, the government asserts that the free exercise claim for an

exemption from the law of general application would, if granted, burden persons not seeking that

exemptioni.e., persons with a different set of beliefs about the question at issueand that an

exemption is therefore impermissible. In the alternative, the government argues that the law of

general application furthers a compelling governmental interest and is narrowly tailored to

achieve that interest.85

If the court finds that the exemption would burden persons not seeking that exemption,
the burden would shift back to the plaintiff, who would have the opportunity to rebut that finding

by demonstrating that the exemption would not burden other persons.86 For example, in the

contraception mandate cases, the plaintiff would be free to demonstrate that it exclusively

employs persons who share the employers religious beliefs and do not wish to have access to

contraception coverage through their employer-based health insurance.87 Precisely what would

constitute a sufficient demonstration that the exemption would not burden other persons is

85 Id.

86 Alternatively, the plaintiff could be required to demonstrate as part of its prima facie case that the
exemption would not burden others. However, there are several factors that make that structure less
desirable. For instance, it would require the plaintiff to prove a negative fact as part of its prima facie
case, and the novelty of the burdens analysis makes it better-suited to function as an affirmative
defense.

87 See, e.g., Louise Radnofsky, Judge Backs Catholic Owners of Firm on Health-Law Rule, WALL STREET J.
(July 27, 2012),
http://online.wsj.com/article/SB10000872396390444840104577553453432133274.html.

21

beyond the scope of this paper, but a careful consideration of the relevant First Amendment

principles and balancing of the interests involved should facilitate these decisions.

C. Claims for an Exemption from PPACAs Contraception Mandate Do Not Survive This Analysis

When a burdens analysis is added to the equation, an exemption from PPACAs

contraception mandate for religiously-affiliated employers is clearly unjustifiable. The

contraception mandate is a neutral law of general application. Religiously-affiliated employers

seek an exemption from the law, asserting that compliance burdens their free exercise of

religion.88 The employers allege that their religious exercise is burdened by providing health

insurance coverage for health care services that, if used in a particular way, offend their religious

beliefs.89

The exemption these employers request would mean that the employees, and their

families, would no longer have access to affordable contraception covered by their health

insurance, and would have to face serious health and economic consequences.90 Employees of

exempted employers would be required to pay additionaloften extensivecosts for necessary

contraceptive care, or could be forced to go without contraception entirely.91 Employees would

be forced to make choices about their health and the well-being of their families based on

whether they could afford the contraception appropriate for their particular circumstance, merely

88 Complaint and Demand for Jury Trial at 2930, Univ. of Notre Dame
v. Sebelius, No. 3:2012cv00253, (N.D. Ind., May 21, 2012), available at
http://opac.nd.edu/assets/69013/hhs_complaint.pdf.

89 Id.

90 Frederick Mark Gedicks, With Religious Liberty for All: A Defense of the Affordable Care Act's
Contraception Coverage Mandate, AM. CONST. SOCY FOR LAW AND POLY at 12, October 2012
(forthcoming).

91 Id.
22

because some of those choices would offend the employers religious beliefs.92 In the most

extreme situation, employers would effectively be permitted to make religiously-based decisions

about their employees health and family by withholding insurance coverage otherwise mandated

by law.93 Under these circumstances, the free-exercise exemption claimed by religiously-

affiliated employers would significantly burden the individuals not asserting the free exercise

claim. Therefore, the proposed burdens analysis demonstrates that an exemption from PPACAs

contraception mandate is wholly impermissible.

IV. CONCLUSION

This paper addresses a fundamental question of constitutional law: when can religiously-

affiliated employers acquire an exemption from a law of general application in the name of free

exercise of religion? The law of general application in question is PPACAs contraception

mandate, which requires employers to provide insurance coverage for contraception in their

group health plans.94 The law provides a narrow exception for certain religious employers, but

the exception does not cover a number of employers who consider themselves religiously

affiliated and do not wish to provide contraception coverage on the basis that doing so is

contrary to their religious beliefs.95 A few dozen religiously-affiliated employers have therefore

92 Id.

93 SARAH LIPTON-LUBET, ACLU, PROMOTING EQUALITY: AN ANALYSIS OF THE FEDERAL

CONTRACEPTIVE COVERAGE RULE 6 (October 2012), available at
http://www.aclu.org/files/assets/promoting_equality__an_analysis_
of_the_federal_contraceptive_coverage_rule.pdf.

94 42 U.S.C. 300gg-13(a)(4) (2010).

95 Supra Part II.B.

23

filed suitwith mixed preliminary results96claiming an exemption from PPACAs

contraception mandate under the free exercise clause.97

This paper has discussed the content of these claims for a free exercise exemption,

reviewed the law applicable to free exercise exemptions from laws of general application, and

analyzed the claimed exemptions from PPACAs contraception mandate under the applicable

lawSmith and RFRA.98 However, this papers primary focus has been on an aspect of the

claimed exemptions that is largely ignored by current law: the fact that granting an exemption

from the contraception mandate would place a significant burden on the employees of the

exempted employers. With this burden in mind, this paper has reframed the constitutional

inquiry. Can religiously-affiliated employers be exempted from complying with the law in the

name of free exercise, when the burdens of this asserted free exercise will be borne entirely by

other persons?

This paper has answered that question squarely: no. Allowing employers to externalize

the costs of their religious beliefs onto others who do not share or assert those beliefs violates the
fundamental constitutional principle that government cannot privilege one set of religious beliefs

over all other beliefs, religious or non-religious.99 Exempting religiously-affiliated employers

96 Memorandum and Order, OBrien v. U.S. Dept of Health and Human

Servs., No. 4:12-CV-476 (CEJ), (E.D. Mo., Sept. 28, 2012), available at
http://www.aclu.org/files/assets/09.28.12_final_memo_and_order_on_dismissal.pdf; Newland v.
Sebelius, No. 1:12cv1123JLK, 2012 WL 3069154 (D. Colo., July 27, 2012); Louise Radnofsky, School
Tries New Tack in Contraceptive Fight, WASH. WIRE, July 18, 2012,
http://blogs.wsj.com/washwire/2012/07/18/school-tries-new-tack-in-contraceptive-fight/.

97 Supra Part II.B.

98 Supra Part III.A.

99 Sherbert v. Verner, 374 U.S. 389, 402, 407 (1963); Walz v. Tax Commn of City of New York, 397 U.S.
664, 695 (1970) (Harlan, J., concurring) (The fullest realization of true religious liberty requires that
government neither engage in nor compel religious practices, that it effect no favoritism among sects or
between religion and nonreligion, and that it work deterrence of no religious belief. (quoting School
Dist. of Abington v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring))); RANDALL P.
BEZANSON, HOW FREE CAN RELIGION BE? 23031 (2006).

24

from PPACAs generally-applicable contraception mandate would privilege the set of religious

beliefs that contraception should not be used for specific purposes, at great cost to the persons

employed by the exempted employers. Because existing law on free exercise exemptions from

laws of general application fails to account for the fact that an exemption may significantly

burden persons not seeking the exemption,100 this paper proposed that free exercise claims for

exemptions from laws of general application should be subject to a burdens analysis.

The proposed burdens analysis would allow the government, in response to a claimed

free exercise exemption, to assert its own interest in avoiding privileging one set of religious

beliefs as well as the interests of the persons who will bear the cost of the exemption. It would

also allow courts to recalibrate their analysis of the claim for an exemption, accounting not only

for the free exercise rights of the claimant but for the rights of others who would bear the burden

of the exemption. The burdens analysis would also provide a structural opportunity for the

principles of the establishment clause to inform the analysis of free exercise claims.

Most importantly for the case at hand, the burdens analysis would prevent religiously-

affiliated employers from externalizing the costs of their beliefs about contraception onto their

employees. An exemption from PPACAs contraception mandate would significantly burden the

persons employed by the exempted employers, and as such the exemption wouldin the vast

majority of casesfail the proposed burdens analysis.101 Therefore, religiously-affiliated

employers who do not meet the existing exception to the contraception mandate willlike all

other employersbe required by law to provide insurance coverage for contraception. Whatever

the validity of these employers free exercise claims for an exemption, this outcome means that

100 See supra Part III.A.

101 Supra Part III.C.

25
employers will not be authorized by law to deny their employees insurance coverage for critical

medical care because of the employers religious beliefs. This outcome is constitutionally sound

and fundamentally fair, and demonstrates vividly how the burdens analysis proposed in this

paper would prevent religious freedom from becoming religious power, thereby protecting the

integrity of the religion guarantees for all persons