Richard W. Garnett is Paul J. Schierl / Fort Howard Corporation Professor of Law at Notre Dame Law School.
The current iteration of the religious-freedom challenge to the Affordable Care Act’s preventive-services mandate (not, as is sometimes suggested, to the act itself) is called Zubik v. Burwell. This is unfortunate. True, the caption choice improves the “optics” for the Obama administration and reduces the likelihood of awkward headlines and embarrassing talking points. However, calling the case – as I will – Little Sisters of the Poor better captures its bizarre core and character. Calling it by this name reminds us that the administration has not reluctantly stumbled into but has instead doggedly pursued a conflict with a religious community of Roman Catholic nuns over whether and how its employees will receive government-mandated, cost-free insurance coverage for prescription contraceptives. Regardless of how the Court rules, that this pursuit appears to have been for the administration a matter not merely of policy but also of principle is extraordinary.
First things first: December 10 was “Human Rights Day,” which marks the day in 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights. Religious freedom is among those fundamental human rights. It is a right that is enjoyed by individuals and institutions alike and it exists independently of constitutions and statutes. This is not a partisan talking point or a talk-radio bromide. It is, again, a foundational claim in the international law of human rights.
For us in the United States, religious freedom is our “first freedom,” not in the sense that it happens to appear in our “First Amendment” but, more importantly, because the meaningful embrace and protection of political rights and civil liberties depends on the meaningful embrace and protection of religious freedom. A government that refuses to recognize and concede its limits is not likely to consistently subordinate its own projects and interests to competing claims of free speech, privacy, or due process. Whether or not we are religious believers, we all have a stake in religious freedom.
Religious freedom is more than the legal right of individual persons to believe (or not) what they like or to worship (or not) as they choose. It is more than the absence of coercion or persecution in religious matters. It is more than “neutrality” in a religion-blind sense. Religious freedom is not merely the label we attach to the unremarkable fact that any decent and sensible government will accept – even if only grudgingly– that it cannot and so shouldn’t bother to try to control its citizens’ private thoughts and beliefs, whether about God and Heaven or about music and movies. It is more than that. It is a moral right that every person – because he or she is a person – enjoys and that any morally legitimate political authority is bound to respect.
A crucial dimension of any meaningful understanding of religious freedom is the right – alone and with others, in “public” and in “private” – to practice, exercise, and live out one’s religious beliefs and to act in accord with one’s religious obligations and commitments. It is as much about the right to educate children, care for the sick, and serve the poor as it is about prayer, ritual, and worship. The right to practice one’s religion is, obviously, not absolute; the government may and should preserve public order and promote the common good. However, the “common good” is not a regulatory blank check. Indeed, among its essential components – in addition to functioning courts, reasonably efficient markets, clean air and water, decent social-welfare programs, and so on – is the enjoyed-by-all-and-in-“common” freedom of religion. Accordingly, a government-imposed constraint or significant burden on peaceful religious practices requires some justification beyond the assertions by “the state” or “the experts” or “the majority” that it is warranted or convenient.
In other words, in any political community worthy of admiration, religious commitments and practices will be generously accommodated, within reason, even when they seem to run counter to or bump up against legislative goals and regulatory priorities. The accommodation regime might be administered by judges in some cases or by legislators or other officials in others. In any event, the point is the same: A political community that respects the fundamental human right to religious freedom will, if possible, adjust its demands and accept some costs or inconvenience in order to avoid imposing burdens on sincere religious beliefs and good-faith religious practices. What’s more, it will deliberately take steps to lift such burdens where they exist and to help create a regulatory, social, and cultural environment that is conducive to the exercise of religious freedom and the flourishing of religious life.
We in the United States have committed ourselves – not only through our Constitution, but also through a variety of state and federal laws and policies – to religious freedom. We have been, to be sure, imperfectly and inconsistently faithful to that commitment over the years. We continue to debate its implications and justifications. Still, as a general matter, unless it is highly costly or difficult – unless it would involve a significant sacrifice of a very important public goal, value, or interest – we do and should try to accommodate religious beliefs and practices, even when they strike us as misguided, strange, or silly.
The Little Sisters of the Poor and the other religious nonprofits in the case have reminded the administration, the courts, and all of us of this commitment. They have invoked the protections provided by the federal Religious Freedom Restoration Act — which was enacted almost unanimously by Congress and signed into law more than two decades ago by President Bill Clinton — and asked to be exempted from a requirement that they participate in the provision, through their insurance providers and policies, of contraception coverage to their members and employees.
It is strange that what should be an entirely unremarkable, even if counter-cultural, invocation of their legal and moral rights has been met in many quarters with incomprehension, patronization, irritation, and even hostility. Some claim that the Little Sisters simply misunderstand how the regulations in question or their insurance-coverage arrangements actually work; some contend that they are being manipulated by culture-warrior lawyers who misunderstand or distort Roman Catholic teachings on complicity and cooperation; others charge that the Little Sisters are foot soldiers in a rearguard action against sexual liberation, equality, and modernity; and still others see in their case a reactionary or libertarian (or both) return to laissez-faire ideology or “Lochnerism.”
But again: What the Little Sisters and the other religious non-profits have done is simply invoked the protection of a near-unanimously enacted federal statute that reflects the longstanding values of our own (and any decent) political community and the foundations of human-rights law. The administration’s response, the Supreme Court’s response, and our response should not be resentment or disdain but a genuine willingness to ask, “well, why not?” We should spend less time interrogating, second-guessing, or criticizing as impertinent their assertion of religious-freedom rights and more time considering, in an open-minded way, whether it is possible – perhaps with a bit of effort and flexibility – to accommodate them.
Some religious employers, of course, have been accommodated by the administration. Religious houses of worship, and some affiliated institutions, have been exempted from the contraception-coverage mandate. The Little Sisters, however – like many religious hospitals, schools, universities, and social-welfare agencies – are engaged in the world. They heal, teach, serve, and employ some who do not share their religious faith, but theirs is nevertheless a religious mission. They aspire to carry out this mission, just as many of us aspire to live our lives, with integrity and character. The preventive-services mandate, they say, thwarts this aspiration by changing – indeed, by hijacking – their relationships with their employees.
This claim about the character-distorting and integrity-undermining nature of the mandate – including the limited “accommodation” that the administration has provided – should not be difficult to understand. And yet, a lot of the discussion about the Little Sisters case has taken the form of impatiently questioning whether the mechanism chosen by the administration really burdens the objecting agencies at all. But they sincerely think it does, and so the better reaction, even to objections that strike us as overly scrupulous or excessively sensitive, is to engage in good faith the question, “is accommodation possible here?”
The existing exemption for houses of worship suggests strongly that the answer is “yes.” There is no reason to devalue the religious mission and integrity of the Little Sisters and the other religious non-profits simply because their work is directed more “outward” than “inward” or because they are active in “public” rather than in “private.” It is true that not all of their employees and not all they serve share their commitments, but that should not end the matter. After all, these “in the world” religious non-profits’ right to religious freedom includes the right to construct and live out a coherent religious mission, not only in their relationships with those to whom they minister but also in their relationships with their employees. The government’s interest in respecting this right is – to understate the issue – at least as compelling as its interest in making sure that the employees of the Little Sisters receive cost-free contraception coverage from their insurers or through their insurance. In any event, the coverage could be provided without dis-integrating the mission and character of the Little Sisters and so, given our legal and other commitments to the human right to religious freedom, it should be.