//  3/6/18  //  Commentary

Cross-posted from Balkinization

We have been arguing that the Constitution prohibits the government from accommodating religious practices when doing so entails undue hardship to third parties. That principle is both normatively justified and grounded in legal doctrine, according to work we have published hereherehere, and in several blog posts and opinion pieces.

In response, critics have asked how that argument fits together with another of our convictions, namely that religion generally ought not to be treated with special solicitude in constitutional law. In a new paper, we answer that our normative arguments for the third-party harm principle also apply outside of religious beliefs and practices. In particular, government accommodation of conscience can generate costs to other citizens that raise many of the same concerns as third-party harms in the religion context. (One of us has advanced a similar argument in a separate reply to critics.)

Contemporaneously, events in the world are making this argument relevant. Last October, the Trump administration issued two interim final rules that exempt employers that object to the contraception mandate. (We explained the background to those rules here.) The new rules relate closely to our new argument because they do not only exempt employers who have religious objections to the contraception mandate—they also exempt employers who have moral objectionsto the requirement. And because neither of these exemptions requires any accommodation of workers, they will impose burdens by stripping employees of contraception coverage without cost sharing.

The Trump administration may have accommodated moral as well as religious convictions because of two cases that had been working their way through the lower courts, March for Life v. Burwell and Real Alternatives v. HHS. In these two cases, pro-life organizations brought challenges to the contraception mandate. But because the organizations were nonreligious—their objections to abortion were grounded in secular convictions—they could not take advantage of existing accommodations, which extended only to religious nonprofits. Although federal courts so far are coming out different ways in these cases (ruling for March for Life but against Real Alternatives), our point here is simply that these cases both present situations where nonreligious claims for accommodations are brought against the contraception mandate. Yet both sets of claims are grounded in conscience. Officials in the Trump administration were most likely thinking of such cases when they wrote these two interim final rules.

Recently, a federal court in Pennsylvania struck down both interim final rules, and challenges to them are pending in several other courts. Although the court in Pennsylvania relied on violations of the Administrative Procedure Act, it recognized the harm to women. The court said:

[The moral exemption] has conjured up a world where a government entity is empowered to impose its own version of morality on each one of us. That cannot be right. . . .A simple hypothetical illustrates the insidious effect of the Moral Exemption Rule. It would allow an employer with a sincerely held moral conviction that women do not have a place in the workplace to simply stop providing contraceptive coverage. And, it may do so in an effort to impose its normative construct regarding a woman's place in the world on its workforce, confident that it would find solid support for that decision in the Moral Exemption Rule. It is difficult to comprehend a rule that does more to undermine the Contraceptive Mandate or that intrudes more into the lives of women.

One way to resolve the court’s problem would be to insist that religion is special and disallow the moral exemption, thereby limiting the overall impact on women. And that did seem to be the instinct of the district court judge in the Pennsylvania case. But another way to resolve it is to limit both religious and nonreligious accommodations when they shift harm to others on the basis of religion or conscience. That is the approach we take in the paper.

Protecting conscience alongside religion is familiar from conscientious objector exemptions during times of military conscription, and from “conscience clauses” that protect doctors who object to participating in terminations of pregnancies. But in all these contexts, it is hard to understand why any harm that results to others would be any less objectionable simply because the accommodation is nonreligious. We cannot and do not argue that the third-party harm doctrine is limitless—it has no application where the government accommodates mere policy preferences, for instance. But where the nonreligious convictions being accommodated are as profound and important as they are these situations, the same limits that apply to religious claims ought to apply to accommodations for nonreligious claims as well. 

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