Let’s run through the elementary confusions in this New York Times house editorial:
1. NYT charges that “the real assault on religious freedom [is] the assertion by private businesses and their owners of an unprecedented right to impose the owners’ religious views on workers who do not share them.” It contends that the HHS mandate is necessary to “preserve an employee’s right to make her own decisions regarding birth control and not to conform to the religious beliefs of her employer.”
But the plaintiff businesses and owners are not trying to “impose [their] religious views on workers.” If they succeed in refusing to comply with the HHS mandate, their employees would remain entirely free to obtain and use the full range of FDA-approved contraceptives and to “make [their] own decisions regarding birth control.” All that the businesses and owners are objecting to is the Obama administration’s insistence on dragooning them to provide insurance coverage that violates their religious beliefs.
If the Obama administration wants to marginally increase the already easy access that employees have to contraceptives, it can do so through alternative means that don’t violate employers’ religious-liberty rights. That’s exactly what the standards set forth in the Religious Freedom Restoration Act contemplate.
2. NYT asserts that the Religious Freedom Restoration Act “was not intended to cover profit-making corporations,” and it observes that the Supreme Court “has never recognized that a secular corporation is an entity capable of engaging in religion.”
As a textual matter, RFRA extends its religious-liberty protections to all “persons,” and relevant federal law (as the third paragraph of this post explains more fully and as even the dissenter in the Seventh Circuit acknowledged) defines “persons” to include corporations. If a law were to require all restaurants to serve pork and to be open on Saturdays, is it really NYT’s belief that a kosher deli run by a Jewish family would not even have a claim under RFRA if the family has incorporated the deli?
Perhaps because the federal government has never before imposed on employers an intrusion on religious liberty comparable to the HHS mandate, the Supreme Court hasn’t spoken one way or the other to the religious-liberty rights of for-profit corporations. The narrow claim that plaintiffs make is that the individual owners of closely held, family owned companies and the companies themselves have religious-liberty rights under RFRA. As the kosher deli example shows, there is nothing extraordinary about that claim. Indeed, the fact that for-profit and nonprofit corporations can engage in the very same activities makes it very odd that nonprofit status should be an essential condition of whether a corporation is engaged in an exercise of religion.
3. NYT asserts that “any burden imposed on the employer’s religion is trivial—the law [i.e., the HHS mandate], after all, merely allows employees to make independent decisions about birth control.”
Non sequitur alert! The burden imposed on the employer consists of massive financial fines. That burden easily meets RFRA’s low threshold of “substantial.” NYT’s proposition after the dash is irrelevant to the substantial-burden inquiry. (Per point 1, that proposition also falsely suggests that employees somehow lose their ability “to make independent decisions about birth control” if their employers aren’t required to comply with the HHS mandate. Before the mandate was imposed, did employees lack that ability? Of course not.)
4. NYT asserts that the “mandate’s promotion of women’s health and equality is clearly a compelling interest.”
But as Seventh Circuit judge Diane Sykes explained so well, the Supreme Court’s unanimous opinion on RFRA in Gonzales v. O Centro Espirita “has instructed us to look beyond ‘broadly formulated interests justifying the general applicability of government mandates’ and ‘scrutinize the asserted harm of granting specific exemptions to particular religious claimants.” Further, when the public interest that the government advances is stated “at such a high level of generality,” it is “impossible to show that the mandate is the least restrictive means of furthering them”: “There are many ways to promote public health and gender equality, almost all of them less burdensome on religious liberty.” In short, RFRA requires that the supposedly compelling governmental interest be defined far more specifically than “promotion of women’s health and equality.”
5. From its first sentence on, NYT misleads its readers into thinking that the HHS mandate is a provision of the Obamacare law itself, rather than a discretionary exercise of regulatory authority by the Obama administration. (When the first sentence refers to “the law’s requirement that employer health plans cover birth control,” the referent for “the law” is the sentence’s earlier mention of “the Affordable Care Act.”) NYT also says that the “thoughtfully balanced law” (i.e., the HHS mandate) “exempts houses of worship and accommodates nonprofit religious and church-affiliated organizations,” but it gives no hint that the intense political reaction against the initial rule forced the Obama administration, over NYT’s vigorous objection, to expand the incredibly narrow initial exemption and to offer some sort of accommodation (however inadequate) for religious nonprofits.
NYT’s evident intent is to obscure how hostile the Obama administration has been to religious-liberty concerns over the HHS mandate.
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