Should a Boss's Religious Views Overrule His Workers' Rights?

The production line at the Taiwan Fuji Latex Condoms Discovery Center in New Taipei City on July 24, 2013. The author argues that being denied access to contraception amounts to having the government favor the religious beliefs of employers over the beliefs of employees. Pichi Chuang/reuters

The Supreme Court is currently wrestling with a case called Zubik v. Burwell, involving the scope of the religious accommodations that must be given to employers who provide health coverage to employees and do not wish to be implicated in providing the contraceptive coverage that would otherwise be required under the Affordable Care Act (ACA).

It's not that the employers are being required to provide or pay for that coverage themselves. They already have an exemption for that.

The issue is whether they can avoid even providing a notice that they are claiming that exemption, because they view the notice as a trigger that will lead indirectly to their insurance company providing the coverage.

The right option, they say, is that their employees should not have contraceptive coverage or should be required to seek it out through some other kind of policy that the employers have no connection with.

This kind of argument is becoming more and more familiar, as various religious individuals and companies increasingly object to legal duties they believe will make them complicit in what they consider the sinful conduct of others.

Here, the argument is that by doing anything that will lead to contraceptive coverage, employers who believe it is a sin to use contraception become guilty indirectly of the sins of their employees.

That argument would never work under the First Amendment guarantee of free exercise of religion. But the employers have invoked the Religious Freedom Restoration Act, which requires the government to provide a compelling justification for any refusal to grant an exception to enforcement of any federal law that substantially burdens the religious beliefs of some people.

The case has already been argued, but the court then asked for more briefing. Some comments made at the argument create concerns about whether the court will give too little weight to the legitimate interests of the employees that Congress sought to protect in the ACA.

The chief justice summed up the reasons for concern when he suggested that the government wanted to trample a "basic principle of faith" just to save the employees from the "administrative burden" of obtaining contraceptive coverage through some mechanism other than their main health insurance coverage.

What that disregards is the real harms visited upon employees seeking to make important and constitutionally protected personal choices through the use of contraceptives.

Being denied the same seamless and free access available to other employees imposes more than an administrative burden, because it amounts to having the government favor the religious beliefs of the employers over the beliefs of the employees themselves about the value and morality of family planning.

There is real harm to the equal dignity of every employee who is told by her own government that she cannot get seamless and free contraceptive coverage because some other private citizen, her employer, believes she is making sinful choices about how to lead her life.

In other contexts, that kind of dignitary harm caused by accommodating religious objections to legal duties is not so easily disregarded. The court long ago decided that a religious college cannot claim a right to discriminate based on religion because the harms inflicted on victims of racial discrimination are just too serious, even if the discrimination stems from sincere religious belief.

The court made that general point again in the 2014 Hobby Lobby case. Similarly, when faced with religiously based refusals by businesses to service LGBT people, I would hope and expect the court to come out the same way.

A married lesbian couple, for example, should not have to worry about being turned away from a hotel based on the religious beliefs of its owner.

That is because the harm caused by having to seek another place to spend the night is not just an "administrative burden." It is the harm of being rejected based on personal life choices those women had a constitutional right to make for themselves.

There is no reason to ignore the same kind of harm when the issue is contraception rather than college admission or a hotel room. I don't doubt that the employers in Zubik sincerely believe it would be a sin to do anything that leads directly or indirectly to the provision of contraceptive coverage for their employees.

But the goal should be to find a way to respect those beliefs as much as possible without disregarding the core interests of employees who have different beliefs, want to exercise their constitutional right to use contraception and were granted the right in the ACA to easily accessible coverage.

The existing accommodation, exempting these employers from having to provide contraceptive coverage themselves, is a good example. In deciding whether to go further, the court should not trivialize the harm that will be inflicted by any solution that puts roadblocks in the way of employees who need and want free and easily utilized contraceptive coverage.

Paul Smith is a partner at Jenner & Block LLP and the lawyer who argued Lawrence v. Texas, the landmark gay rights case, in the Supreme Court.

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