Bench Memos

Garrett Epps’s Topsy-Turvy Misunderstanding of Religious-Liberty Precedents

In a badly confused essay, the Atlantic’s Garrett Epps contends that Supreme Court precedent compels the conclusion that Hobby Lobby and its owners (and other for-profit businesses challenging the HHS mandate) “have not suffered any injury worthy of redress under the Constitution.” But Epps mistakenly invokes inapplicable precedents and ignores those that plainly govern.

Epps recites Hobby Lobby’s position that it “object[s] to being forced to facilitate abortion by providing abortifacients, and that objection does not turn on the independent decisions of their employees.” But he asserts that the Court “has repeatedly declared this ‘facilitate’ argument categorically false.”

Unfortunately, Epps confuses his categories. Epps is correct that the Court has (soundly) held in the Establishment Clause context that, as Chief Justice Rehnquist put it in the landmark school-choice decision in Zelman v. Simmons-Harris (2002), “our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.” (Citations omitted.) But although Epps slides from recognizing that this is an Establishment Clause principle to claiming that it is a principle that ought to govern the “religious rights of citizens” more broadly, he fails to justify that slide.

The pertinent legal question under the federal Religious Freedom Restoration Act and the Free Exercise Clause is whether the massive fines that an employer faces for providing an employee health plan that does not comply with the HHS mandate substantially burden the employer’s exercise of religion. As Hobby Lobby spells out (pp. 34-44 of its brief), the answer to that question is clearly “yes” under the Court’s precedents. Indeed, “‘a fine imposed for adherence to religious beliefs is as direct and obvious a burden as one could imagine.” (Brief at 36-37.)

Epps evidently imagines that he escapes these precedents (which he doesn’t even acknowledge, much less place in intelligible context for his readers) by pointing out that any decision to use the potentially embryo-killing drugs and devices that Hobby Lobby objects to is the employee’s “independent choice.” His point is irrelevant to the substantial-burden inquiry. What Hobby Lobby and its owners object to is being pressured to engage in what they regard as improper complicity in immoral conduct.

On the question of religious-liberty protection against improper complicity, Supreme Court precedent is entirely against Epps. As Eugene Volokh has spelled out:

[F]or purposes of RFRA, the question isn’t whether a judge or jury agrees with a person’s claim that a law [that] requires him to engage in behavior is sinful — it is whether the person sincerely believes that the behavior is sinful. Likewise, when the person believes that complicity itself is sinful, the question is not whether our secular legal system thinks that he has drawn the right line as to complicity; it is whether he sincerely believes that the complicity is sinful.…

Thomas v. Review Board (1981) is the classic illustration of this. Thomas had been working at a machinery company, and was transferred to a department that produced tank turrets. Thomas refused to work on such military production, and was fired. Under the Court’s Free Exercise Clause jurisprudence, whether Thomas could claim unemployment compensation turns on whether his refusal to work on war production was an exercise of his religion.…

Thomas wasn’t, of course, being required to kill anyone using a tank, to fire a tank gun, to ride in a tank helping the gunner, or to assemble a completed tank. But he thought that the religious prohibition went further than that. Even making tank turrets — though not making steel that would go into a tank — was, he thought, itself sinful complicity with sin.

And the Court held that it was for him, not for the secular courts, to figure out where he thought God wanted him to draw a line. The “substantial burden” requirement didn’t require that the connection be “substantial” enough in the secular legal system’s understanding of complicity.…

Likewise, the Hobby Lobby owners drew a line: Providing health insurance — including through their closely held corporation — that covers what they see as tools for homicide is sinful complicity with sin. Providing salaries that employees may use to buy the same tools, or hiring employees who use those tools, is not.

Many of us might draw the line elsewhere (even if we agreed with the judgment that the potentially implantation-preventing contraceptives are sinful). But it is for the owners of Hobby Lobby to draw the line, and not for the courts to second-guess it. Perhaps there is a compelling interest that justifies the substantial burden that the law imposes on the owners … but courts cannot say that the burden is insubstantial simply because they think the complicity is too attenuated.

It did not matter to the substantial-burden inquiry under Eddie Thomas’s Free Exercise claim that it would be someone else’s “independent choice” to engage in an objectionable military use of the tank turrets he was making. Likewise, it is simply irrelevant to the substantial-burden inquiry under Hobby Lobby’s claim that the actual decision to use embryo-killing drugs or devices would be the “independent choice” of the employee (or of other insured family members).

In other words, Zelman and other cases establish only that, for purposes of the Establishment Clause, the government is not responsible when a private individual chooses to direct money to a religious school. They do not speak at all to the entirely different question, under RFRA and the Free Exercise Clause, of the range of permissible religious beliefs about what constitutes improper complicity in immoral conduct. As the Court made clear in Thomas, that is not a question “within the judicial function and judicial competence.”

In an odd twist near the end, Epps claims that Hobby Lobby is “assert[ing] a right to control employees’ private choice.” But a victory for Hobby Lobby will not change the fact that the decision whether or not to use embryo-killing drugs or devices will remain entirely with the employees. What it will mean is that employers will not be dragooned to be complicit in conduct that violates their religious consciences.  


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