Is the Catholic Hospital Rule Unconstitutional? No.

Reactions to the Supreme Court's Hosanna-Tabor ruling were predictable. Conservatives liked it and liberals mostly did not. You might file this one under: "be careful what you wish for."

In Hosanna-Tabor, the Court carved out a "ministerial exception" to employment discrimination laws. The Free Exercise Clause gives churches a complete discretion to appoint and dismiss ministers and other religious functionaries, free from government interference. I think the unanimous decision was correct. See my posts on the decision here and here.

The recent ruling by HHS that, under the Affordable Care Act, church-affiliated hospitals must cover free contraceptives as part of their health care coverage for employees has ignited a firestorm of opposition. The Sibelius rule (let's call it that) was anticipated and there were already lawsuits in the works against it. I expect that more will follow. The lawsuits will challenge the rule as a violation of the Free Exercise Clause.

I argued previously that the rule is bad policy and dreadful politics. I also suggested that it was not unconstitutional. I make that case in more detail here.

Hosanna-Tabor seems to work against the argument that the new rule violates Free Exercise of Religion. Pastors and "called teachers" are religious functionaries and thus enjoy the ministerial exception. The Court left open the possibility that, even in a Church, certain employees might be coverable by anti-discrimination laws if their mission was purely secular. I suggested the example of a gardener. I think that that was the point of this passage in Justice Thomas' concurrence.

The question whether an employee is a minister is itself religious in nature, and the answer will vary widely. Judicial attempts to fashion a civil definition of "minister" through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the "mainstream" or unpalatable to some. Moreover, uncertainty about whether its ministerial designation will be rejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs and practices regarding "ministers" to the prevailing secular understanding. See Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 336 (1987) ("[I]t is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious…"

I think that Justice Thomas wants the ministerial exception to cover all church employees and I think he was right.

However, if a pastor is a religious functionary and even a gardener hired by a church may be such, doctors and nurses in a church-affiliated hospital manifestly are not religious functionaries. One might argue that they certainly are covered by all relevant employee discrimination laws for precisely the reason that pastors are not.

A stronger case can be based on the Court's Free Exercise jurisprudence. In Sherbert v. Verner (1962), the Court ruled that Adeil Sherbert, a member of the Seventh-day Adventist Church, could not be denied unemployment benefits because she refused to work on Saturdays (her Sabbath). This imposed a "significant burden" on her ability to freely practice her religion.

If Sherbert were still the test, a Free Exercise challenge to the Sibelius might succeed. The trouble with the test is that it might amount to a blanket license to ignore any law to which one claimed a religious objection. To avoid this, the Court insisted that the burden to free exercise must be "significant", but that in turn meant that the Court would have to decide which religious practices were significant. Inevitably, the Court would be tempted to bless practices it approved of and deny blessing to those that it did not approve of. That looks problematic under the Establishment Clause. The Sherbert Test was bad jurisprudence.

It was replaced in Employment Division of Oregon v. Smith (1990). The question in that case was this: can a state deny unemployment benefits to a person fired because of the use of illegal drugs (peyote) for religious purposes. The Court said "yes." As long as a law is generally applicable (meaning that it applies to everyone equally, regardless of religious motive or affiliation) and is otherwise constitutionally valid, then it does not run afoul of the Free Exercise Clause. The Free Exercise Clause only blocks laws that specifically target religious practice.

I think that the Smith Test is the right one. The Free Exercise Clause is not a "get out of jail free card" for the religiously motivated. It is designed to prohibit legislation that targets unpopular religious practices. To see a rare case of a genuine violation, look to Church of Lukumi Babalu Aye v. Hialeah (1992). The City of Hialeah in Florida drafted an ordnance designed to push the Santeria church out of town.

I think the State of Oregon and all other states should allow the ceremonial use of peyote. I don't think that any state should allow female circumcision. Those are judgment calls which the Free Exercise Clause cannot control. They are best left to legislatures.

Similarly, I think that the Sibelius rule is bad policy. Forcing church-affiliated hospitals to pay for birth control against their founding principles is not worth offending the donors and managers of institutions that do an immense amount of public good. Arranging the laws to maximize religious liberty is a bedrock part of American policy. However, just because I think that the rule is bad policy doesn't mean that it's unconstitutional.

These are preliminary reflections. We will have to see how this plays out if, as I expect, it lands before the High Court. I am inclined to think that the rule is not a violation of Free Exercise and I expect that the Court will agree.

Comments

[larry kurtz]

I was going to bring this up when you wrote the Hosana posts, Ken: had the plaintiff been a man he likely would have been retained instead of fired. Religions and churches have gotten away with murder ever since Mitochondrial Eve said 'no' to a rapist.

Men are jerks by definition.

[Bill Fleming]

David Boies would appear to agree with you here, KB. Good call.
http://thelastword.msnbc.msn.com/_news/2012/02/09/10358005-constitutionality-of-birth-control-mandate

[A.I.]

David Boies seems to only half agree Bill. Unlike KB, he doubts it will have the standing to get to the High Court.

[Bill Fleming]

A.I. good point.

[Ken Blanchard]

Apparently, Mr. Boies hasn't heard of Hosanna-Tabor. You DO sometimes "exempt religious employers just because of their religion." The Court did so unanimously in H-T. The question is whether the Court will do so in this case.

It looks to me like all the ingredients for standing are there. You have an alleged injury, an alleged injurer, and an obvious remedy. Just because Boies doesn't like the argument doesn't mean that it will have a hard time getting into court.

[Troy Jones]

Ken,

I'm Catholic so I'm only have knowledge to talk about it as it applies to the Catholic Church.

Catholic Social Teaching is an integral component of living a Catholic life. Catholic social service organizations (universities, hospitals, adoption agencies, soup kitchens and the like) are an extention of the Church's Gospel ministry. We don't separate the good we do to all of society without regard to religious creed and our theological teachings. They are as said in Catholic vernacular part of the seamless garment.

There is an operative statement that grounds individual and collective action: "Material cooperation with evil." It is always sinful and illicit. Any force to do so must be opposed and there is no room for complicity.

Cardinal George predicted this would be a by-product of Obamacare, not withstanding the promises made during the debate it would not be used to force such matters on the Church when he said "I expect to die in my bed, my successor will die in prison, and his successor will die a martyr."

Unfortunately, he underestimated the time for it to occur. Another Archbishop just said to his Congressman recently: "I will not recognize this and am willing to go to prison if this stands."

Final comment: There is another operative phrase in Catholic teaching that guides us individually and collectively: Respect for "prudential judgment" in pursuing means for social justice and moral living. This exercise of prudential judgment is evidenced in great diversity among Bishops, Priests and the lay faithful on many issues. In my lifetime, I've never seen a political issue result in absolute unanamity among the US College of Bishops nor among Priests.

Even the very liberal nun who is the head of the Catholic Hospital Association and took heat from Catholics for her and her groups support of Obamacare said she feels betrayed and blind-sided and said this can not stand.

[A.I.]

By "High Court" I assume you mean the Supreme Court KB. I'm going to make another assumption that Boies does not mean to imply a case would never get into a lower court--only that it would not proceed and that the lower court would rule against the plaintiffs.

I'm absolutely certain Boise is familiar with Hosanna-Tabor which dealt with "ministerial exception". And it's likely he would argue successfully that the exception does not apply here because that would mean, for example, a non-Catholic, female nurse is somehow a "minister" of the Catholic faith because she happens to work in a Catholic affiliated hospital.

What many say is in question here is the concept of a "conscience clause" regarding birth control measures which is a whole other can of worms.

[larry kurtz]

A.I. Exactly.

[larry kurtz]

Seven sacraments for men; six for women.

http://en.wikipedia.org/wiki/Sacraments_of_the_Catholic_Church#Holy_Orders

[Bill Fleming]

Well, there appear to be already a number of Catholic-based organizations offering contraceptives as part of their health care coverage. http://thinkprogress.org/health/2012/02/09/422281/large-catholic-institutions-offered-contraception-even-before-mandated-to-do-so/?mobile=nc

Excerpt:
"Once the law passed, Catholics had to provide contraception benefits. But rather than accusing the state of starting a war against religion, the organization left the decision to the consciences of its members:

“Our employees know what church teaching is. And we trust them to use their conscience and do the right thing,” said Brent King, spokesman for the Madison Diocese, which began covering prescription contraception ...

Diocese of Madison employees, Catholic and non-Catholic alike, sign a document when they’re hired vowing to abide by the laws of both Wisconsin and the church. He said employees would receive “strong pastoral recommendations against” using the contraception benefit, but that the diocese has no intention of policing it.

Significantly, the Obama regulation exempts churches from including the birth control benefits in their plans and would provide an a new layer of conscience protections for the state. But since most Catholic women rely on contraception, it’s likely that many may still offer the benefit."

[J McCleery]

If I were the head of a Catholic organization, I would put out a simple statement that says that the organization will comply with the ObamaCare mandate, as required by the law.

However, I would put out a second statement that the Supreme Court's decision Hosannah Tabor v EEOC affirms our right to fire any employee who is suspected of immoral behavior, including taking birth control.

[Troy Jones]

Two comments:

1) I am wondering if the Obama administration/Bill Fleming would allow the Madison Diocese to continue their policy but choose to police those who avail themselves of the option and fire them for violating the document they sign at hiring?

2) This would of course require a Hippa exception regarding this item. Would that be acceptable?

If not, the Obama assault on freedom of conscience and free exercise of religion still stands.

[Donald Pay]

The assault on freedom of conscience and free exercise of religion is being waged here by the Catholic Church. The freedoms in the Bill of Rights are freedoms to individuals, not to organized groups of people.

[larry kurtz]

@TrahantReports Mark Trahant:

"Twist on Catholics & contraception: Power of state over religion was already decided against Native Am Church in Smith case. Revisit that?"

[Bill Fleming]

Troy, that would be up to the courts and existing labor law, not Obama. My opinion is, Madison should try it and see what happens. I don't know what Obama's opinion would be.

[Bill Fleming]

...thinking your question through a little further, Troy, wouldn't the proper Madison Diocese first response be to excommunicate those Catholics who failed to keep the agreement? Perhaps they could even include that language as a condition of hire. How well do you suppose the faithful would warm up to that kind of policy?

[Ken Blanchard]

Great thread! But perhaps it is moot; the Administration appears to have caved on the issue.

[larry kurtz]

The President did not "cave;" he negotiated a compromise.

[A.I.]

If only every Obama "cave" had retained so much of his original objective--in this case, 100%.

[larry kurtz]

Parenthetically, KB: i confess that your photo choice for this post is a freakin' hoot! Spanky and Alfalfa 70 years hence; or maybe Jabba the Hutt and Idi Amin go steady....

[larry kurtz]

er, Buckwheat and Spanky....

[larry kurtz]

Justice Thomas' left hand is clearly flashing the Vulcan Salute and Justice Scalia's left hand is in a nearly white-knuckled fist. Their jowls suggest opulence and lack of physical activity: Statins are obviously part of their daily med regimen and sex likely out of the question.

Sad, really.

[Ken Blanchard]

I retract my comment that the President caved. He pretended to cave, saying things about his "compromise" that were manifestly untrue. If insurance companies are compelled to offer "free" contraceptives, they will merely include that charge in their premiums and thus the Church-affiliated hospitals will still be paying for it. I expect that the opposition to the new rule will not be bought off with this fiction. Maybe a compromise that insists on 100% of the original position isn't really a compromise at all.

A.I.: I certainly agree that nurses as such are not ministers. That was the point of my argument. I don't know how you can be "absolutely certain" what Boies knows. What he said was false.

Bill: it certainly seems to be true that many Catholic organizations have voluntarily agreed to cover contraceptives in their insurance plans. The point is that it was voluntary.

[Bill Fleming]

"The point is that it was voluntary." I think the point is that the Bishops are just trying to pick a fight and are using this as a scapegoat. If this really mattered to them the crackdown would have happened long ago, and it wouldn't have had anything to do with politics other than internal Church politics. As usual, the issue the Church really has is with its own congregation, especially the female members.

[A.I.]

All I said I was "absolutely certain" of KB was that Boise is "familiar" with Hosanna-Tabor. I think it is a fairly safe bet that one of the relative handful of attorneys that argue cases before the Supreme Court would know about this case.

You say insurance companies "will merely include that charge (contraceptive coverage) in their premiums and thus the Church-affiliated hospitals will still be paying for it." However, the administration contends contraceptive coverage results in a net savings for insurers when balanced against costs associated with pregnancy. It would then follow that plans that do not cover contraceptives should cost more. That not only renders your argument moot, it also implies insurers should increase premiums for institutions that exercise exceptions granted under this rule.

[john davidson]

Hi Ken,

Will be decided by saner heads and is not going to stand - just saying.

john davidson

[larry kurtz]

Viagra coverage means breeding more paying Catholics to settle Church sex abuse lawsuits: NPR. Sheesh....

http://www.npr.org/blogs/health/2012/02/13/146822713/why-catholic-groups-health-plans-say-no-to-contraceptives-yes-to-viagra?ft=1&f=1128&sc=tw

[john davidson]

Hey Larry, et al - Google James Joyce and Catholicism...

"Here comes everybody"

Sounds like diversity and multi-culturalism to me!

Maybe some day we will all have a beer together..

john d

[john davidson]

Hey Ken,

The naysayers to the Catholic Bishops are all wasting their time, no offense.

The administration is trying to position itself as being more meaningful than the Catholic Church.

Fat chance.

jd

[john davidson]

Ken - Of course SCOTUS will not review the HHS "ruling" as a contraception matter, that said here is an interesting take on the RCC view of contraception.

This should really PO most of your contributors. I hope they click and learn.

That includes you, Larry! :)

http://fullcomment.nationalpost.com/2012/02/16/father-raymond-j-de-souza-what-contraception-has-wrought/

Best regards,

john davidson

[john davidson]

"The culture is broken, and therefore the reigning cultural orthodoxy needs a little dissent. The historic role of the Christian tradition has been to provide it."

Fr. Raymond J. De Souza