Professor Douglas Laycock of the University of Virginia law school has spent his long and accomplished career specializing in the law of religious freedom, and is known both for his important scholarship on the subject and for his appellate advocacy on behalf of religious liberty. So it’s dismaying to see his Washington Post op-ed today, in which he explains why, for the first time ever, he has sided with the government in a religious freedom case, by filing an amicus brief in the Little Sisters’ case to be argued this Wednesday. Dismaying because Laycock’s argument is wrong about nearly everything, from the facts to the legal arguments to the political implications of the case. (By contrast, the Wall Street Journal op-ed by the equally distinguished scholar of religious freedom John Garvey, now president of Catholic University of America, gets everything just right.)
1. Laycock begins by noting that the HHS abortifacient-contraceptive mandate altogether exempts houses of worship “and their integrated auxiliaries” from having to provide the services they would find objectionable. Then he writes: “All other conscientious objectors are also exempt, but their insurance companies are not.”
First, it is simply not so that “all other conscientious objectors” get anything at all. According to the HHS rule, an “eligible organization” must be a nonprofit that “holds itself out as a religious organization.” There are many, many nonprofits that could conscientiously object to the mandate that won’t qualify because they don’t consider their missions religious in nature.
Second, even the government does not use the word “exempt” to describe organizations like the Little Sisters and the other petitioners in the case being argued this week. It refers instead to an “accommodation” it offers them, because of course it still intends to compel coverage of their employees under the mandate. And the onus is not simply, or even primarily, on “their insurance companies.”
2. Laycock continues: “If an employer refuses for religious reasons to cover contraception, the government instructs the employer’s insurance company to provide free contraception separately, with segregated funds and segregated communications to employees . . .”
The so-called “accommodation” affects two types of insurance arrangement. The first is the employer who contracts with a health insurer to cover its employees. As John Garvey points out—and he runs an organization meeting this description—in this situation the employer is still paying for the contraceptive-abortifacient services. A premium is paid for all services rendered under the employer-insurer contract, and those services must include the very ones to which the employer objects. The claim that the employer bears no costs is predicated on the (dubious) proposition that the insurer will pay out less for pregnancy-related services as a result of providing the “free” contraception. As Garvey puts it, the “insurance company simply moves the change around in its pockets.” The “segregated funds and segregated communications” claim made by Laycock is a laughable fiction.
A second type of arrangement, of admittedly more complexity, is when an employer is “self-insuring,” covering employee medical care out of its own resources, with a “third-party administrator” (TPA) handling the paperwork. Here the government expects the TPA to bear the costs of the mandated services, and promises to reimburse the TPA for any losses suffered by the (probable) failure of the projected savings on pregnancies. But the entire arrangement still depends completely on the government’s conscription of the employer’s health plan and contractual relationships, with both its TPA and its employees.
3. Because Laycock inaccurately describes the operation of the mandate, he advances the erroneous view that the petitioners’ “real objection is to what their secular insurers are required to do,” not to what they themselves are required to do. He continues: “The religious objectors demand a right to control how the government regulates insurance companies.”
This claim is false. As Judge Daniel Manion explained in a cogent dissent last September (which I discussed here), in the case of employer-insurer contracts, “but for the nonprofit’s hiring of the insurer, and the nonprofit’s continuing contractual relationship with it,” there would be no delivery of the objectionable services, and no obligation on the insurer. And even in the case of employer-TPA contracts, “the only way an employee receives coverage for contraceptive services under the accommodation is to enroll in the objecting nonprofit’s health plan.” As Manion concluded, “the offensive provision is inseparably imbedded in the nonprofits’ health plan.”
4. Laycock claims that the objection to the mandate rests on a claim that any sincere objection to a government requirement, on religious grounds, in itself proves that a “substantial burden” exists under the standard RFRA test. And it can’t be right, he says, that every sincere claim should satisfy the substantial burden inquiry; they’re supposed to be separate questions.
But that is not what the petitioners are claiming in the Little Sisters’ case. The form of the argument is something like this: A) We have a religiously grounded objection to abortifacients and contraception; B) The “accommodation” makes us complicit in the very evil to which we object; and C) The government threatens us with crippling fines unless we acquiesce in the accommodation.
It is true that commentators at times have tended to blur A and B, so that a denial that employers are complicit is taken as an attack on the sincerity of their religious objection. But that is not the way petitioners actually argue (see the Little Sisters’ reply brief, for instance), and it is not the view, e.g., of Judge Manion in the dissent quoted above. Yet it is really the government and its sympathizers (like Laycock) who work hard to make point B disappear from view, in order to reassure the petitioners that they can avoid C and still hold to A.
It’s fair enough to call point B a theological argument, since it begins with a major premise in point A. But the question of complicity or cooperation in evil is not a matter of blind faith; it’s a matter of moral reasoning accessible to anyone who can follow a train of argument about intentions, actions, and consequences. I recommend this theologians’ brief as the best explication of the kind of cooperation involved here, which is called “formal” cooperation because the compulsory act the government demands would align the employers’ conscious intentions with the very evil to which they object. The involvement is tightly entangled with deliberate action and not merely remote “material” cooperation, as in, say, paying taxes that are later spent from a common fund on someone else’s contraception.
Laycock’s hostility to the Little Sisters’ claim rests either on a failure to understand such moral reasoning, or on a stubborn refusal to grant the moral gravity that point B in the argument above borrows from the religious conviction in point A, regarding the nature and enormity of the evil involved. He seems, in short, incredulous that any employer could object to the government’s mandate that it undertake such a slight thing as authorizing others to provide one’s employees with drugs that cause the death of their children, because he refuses to credit the obvious fact that they are authorizing it. But he doesn’t have to share the religious view of the petitioners to grasp how ghastly is the evil in which the scheme implicates them, from their point of view.
5. Laycock’s incredulity prompts him to predict that if the Little Sisters win their case, the result will be to set back the cause of religious freedom because “the left” will react with even more hostility to that cause than they already display. But the HHS mandate is easily as grave an imposition on religious conscience as can be seen in any case litigated in the last 40 or 50 years of First Amendment or RFRA jurisprudence. Forced facilitation of abortion cannot be less threatening to conscience than, for instance, subjecting a Lutheran school to the terms of federal employment law even with its “ministerial” faculty, or subjecting a Muslim prisoner to the requirement that he shave his beard. These religious claims deserved to win, but the Little Sisters and their co-petitioners are no less deserving.
Of course, if Douglas Laycock persists in giving the left reasons to be hostile to religious freedom, as he has done here, his prediction could come true.