07/08/2014 10:32 am ET | Updated Sep 07, 2014

The Hollow Promise of Justice Alito's Plan B

On Monday, in Burwell v. Hobby Lobby Stores, the Supreme Court relied heavily on "less restrictive alternatives" when it exempted closely-held corporations from the Affordable Care Act's contraceptive mandate. Justice Alito stressed that such alternatives would have "zero" effect on their employees. This assertion was drawn into question by another decision handed down a mere three days later, granting a temporary injunction in another case. This time, the case was based on the claim that at least one of these supposed alternatives is itself a violation of its religious freedom from which it has a right to an exemption.

Whether the fear aroused by last week's decision in the case of Wheaton College v. Sebelius is justified remains to be seen. That decision was only a temporary order. It granted a Christian college the right to refuse to sign a form that certifies that it is a non-profit religious institution entitled to a religious exemption from the contraceptive mandate, at least until a judge decides whether forcing the school to sign would violate RFRA. According to the college's beliefs (and the beliefs of many other conservative Christian institutions), it is against their religion to "facilitate sin." To provide health plans that cover certain kinds of contraception is to facilitate sin in their view because (a) the contraception to which they object are abortifacents, (b) using abortifacents is a form of murder, proscribed by their religion as a sin, and (c) contributing to their employees' health plans enables their employees to commit this sin. Transferring the financial responsibility for covering these services to another party also facilitates sin because it essentially authorizes financial support for such services.

Dozens of institutions have gone to court, claiming that having to send such letter to their insurance company certifying that it is requesting the accommodation violates their religious faith. In other words, they are demanding an exemption from the exemption!

Although the Wheaton College decision is only a temporary order, it strongly suggests that the opinion handed down by the Court a mere three days earlier was based on false promises.

That opinion, authored by Justice Alito, relied on the assertion there are "less restrictive" ways of providing coverage to employees for the health services to which their employers object. The first alternative identified by Justice Alito is for the government to pick up the tab. Call this Justice Alito's "Plan B." The second possibility suggested by the Court ("Plan C") is for the government to order the insurance companies to absorb the costs, as it does in cases involving non-profit religious institutions. Plan C was devised by the Health and Human Services Agency to accommodate non-profit religious institutions by allowing them an exemption from the contraceptive mandate. It is that plan to which Wheaton College and its fellow travelers object.

The outcry that has greeted yesterday's decision is understandable. By granting a temporary injunction in favor of Wheaton College, the Court suggested that the very alternative it had suggested was available probably violates RFRA. If the Court doesn't think that the challenge is likely to succeed, then it shouldn't be granting the order. Thus the Court seems to be saying that at least one of the two "least restrictive alternatives" that it posited in Hobby Lobby is not actually legal. More than that, if the Court decides in favor of Wheaton College's claim that Plan C substantially burdens its freedom of religion, it will eliminate the accommodation that the government devised out of respect for religious groups.

Perhaps this could be justified if there is yet another way of guaranteeing that there will be "zero effect" on employees' access to reproductive health care services, as Justice Alito promised. Justice Alito's conclusion was premised on the availability of alternative ways for employees to get coverage. By his own reasoning, if there are no alternative ways for employees to gain insurance coverage for the omitted services, then the case for the exemption fails. Yesterday's decision strongly suggests that he, along with other Justices, might well be prepared to eliminate one of the two alternatives hypothesized in Hobby Lobby. But what of the first alternative suggested in the Hobby Lobby decision, Justice Alito's Plan B? After all, even if Plan C (make the insurance company pay) is eliminated, there is still the possibility of Plan B (make the government pay.)

Or is there? The arguments being made by Wheaton College and by other parties raising similar claims, like the religious order, Little Sisters of the Poor, give the illusion -- but only the illusion -- of there being a meaningful distinction between Plan B and Plan C. This is because these parties are all arguing that they object to Plan C, but not to Plan B. That is, they object to having send a letter to their insurance carriers certifying that they are claiming an exemption from the contraceptive mandate because, they claim, in so doing, they are in essence authorizing, or triggering, the extension of coverage for the services to which they object by the carrier. But they don't object to sending documentation to the government and having the government pick up the tab.

Why not? Why is sending notification to the government of its intention to activate its right to an exemption from the contraceptive mandate any less an act of facilitating sin, from the point of view of these religious organizations, than sending a notification to an insurance carrier? In either case, the effect is to activate the assumption of the obligation to cover the omitted services by another party. Logically, there is no reason why a religious party who subscribes to the religious doctrine against "facilitating sin" would not perceive there to be just as much agency involved in sending a letter to the government and just as much responsibility for triggering the provision of insurance as there is in sending a letter to an insurance company to trigger its assumption of financial responsibility.

Of course, there is no requirement that religious beliefs be logical. If Wheaton College or Little Sisters believe there to be a meaningful distinction between the level of responsibility involved in providing documentation to the government to trigger direct government funding for coverage and the procedures necessary to get an insurance company to pay, that is its right. But the holding that will eventually be issued in the Wheaton College and Little Sisters cases will has to apply to all parties alike. If in a future case, a religious "person" or institution should claim that according to its beliefs, notifying the government that it is claiming an exemption facilitates sin because so doing will cause the government to pick up the tab, that "person" will have no less right to its beliefs than Wheaton College and Little Sisters have to theirs. It is not up to the Court to decide which religious beliefs to protect, and there is no litmus test of logic or rationality to which religious beliefs can be submitted in order to qualify for protection.

Justice Sotomayor's dissent in Wheaton College suggests otherwise. In an otherwise powerful opinion, joined by the Court's two other female Justices, Justice Sotomayor wrote that while she does "not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs, ... thinking one's religious beliefs are substantially burdened ... does not make it so." With this statement, Justice Sotomayor dismissed not just the belief that there is a difference between activating coverage by the insurance companies and activating coverage by the government, but the whole idea that "facilitating" the commission of "sin" by someone else could constitute a substantial burden on the free exercise of religion. This, however, is a trap that liberals should resist. It is understandable why opponents of the exemption claims in Wheaton College and Hobby Lobby want to argue against a wholly subjective criterion of religious belief. Insisting that the subjective belief that there is a burden "does not make it so" allows one to deny the existence of a burden, whereas once the existence of a substantial burden is conceded, the government faces an uphill road. But uphill is not the same thing as impassable, at least not if the Court applies the law, dare we say, conscientiously.

Tempting as it is, refusing to recognize the existence of a substantial burden based on the religious doctrine of the "facilitation of sin" is in fact a more dangerous road than the uphill road faced when the burden is conceded. There are numerous reasons why it is a mistake to deny the existence of the burden. First, it is not in fact illogical to believe that when one provides another with the economic means to act one is "facilitating" or providing material support for their actions. By the same token, it is neither irrational nor crazy to believe that if the actions taken by someone who has received material support from you are immoral, then one bears some responsibility, or is complicit in that immorality. This is the same logic that underlies laws against material support for terrorist organizations. It is also the logic underlies boycotts. I might very well decide to boycott Hobby Lobby because I don't want to lend my dollars to their activities. If I do, I will be acting on a theory of facilitating sin (or immoral conduct) not unlike their own.

There is another reason why we should resist refusing to recognize the substantial burden involved in what the plaintiffs believe to be the facilitation of sin, and that is that, contrary to Justice Sotmayor's assertion, there is no substance to religious beliefs, and there is no test to which religious beliefs can be subjected in order to qualify for protection, other than what the believer subjectively thinks. We do not demand that speech meet any objective test of rationality or logic for it to be protected, and belief is no different. It is not for the Court to judge the merits of anyone's beliefs.

Fortunately, there are better grounds for refuting the claim that there is a right to an exemption. Rather than insisting that there is no burden, or that the burden is not substantial, we should accept the logic of the doctrine against the facilitation of sin and look to see where that leads. Under that doctrine, there is no principled basis for granting less protection to a plaintiff who believes it is a facilitation of sin to engage in actions that trigger Plan B than to plaintiffs like Wheaton College and Little Sisters who object to triggering Plan C. If anything, the (hypothetical) plaintiff who believes it's a facilitation of sin to trigger Plan B as well as Plan C is more logical than the actual plaintiffs who (apparently) only believe it is a violation of their religion to trigger Plan C. Indeed, if one takes the doctrine of facilitation of sin to its logical conclusion, participating in any accommodation that ensures there will be "zero" effect on the employees is by definition an act of facilitating sin.

Of course, what matters in the individual case is what the particular plaintiffs actually, subjectively believe. If Wheaton College and Little Sisters happen not to believe that it's against their religion to act in ways that lead to the government covering the tab, so be it. But if the Court is to be logically consistent itself (a matter which is now seriously open to question), then it has to be prepared to grant the same treatment to religious objectors to Plan B as to Plan C. To put it plainly, there is no logical basis on which the Court can distinguish religious objectors to accommodations that involve making the government pay.

But to allow religious objectors not to participate in "plans" that enable the government to pay for things they view as sinful is tantamount to allowing religious objectors to object to government itself. If a religious objector has a right to be exempt from signing a document that triggers the provision of government funding for contraceptive services (as would logically seem to follow from holding that a religious objector has a right to be exempt from signing a document that triggers the provision of funding the same services by an insurance carrier), then why not hold that a religious objector has a right not to pay taxes to the government that are used to pay for things that the objector deemed to be sinful. The Court has already addressed this issue in United States v. Lee, where it held, for obvious reasons, that no such right can be recognized. Similarly in the case of Bob Jones University, the Court held that a private religious institution cannot demand an exemption from regulations enforcing important government interests when those regulations accompany the receipt of government subsidies in the form of tax exemptions. In both cases, the Court recognized that the government's use of the tax system to collect revenue and to subsidize private actors (as it does when it provides tax exemptions) cannot be allowed to be subjected to exemption claims. In neither case did the Court find it necessary to deny the existence of a burden. Instead, it held that some burdens are not unconstitutional, particularly, in cases where the fundamental ability of the government to function is at stake.

Returning to Justice Alito's "Plan B" -- make the government pay -- it's worth noting what a remarkable (not to say hypocritical) concession this is coming from supposedly stalwart opponents of government-funded healthcare. We hold little hope that the Court's conservative Justices will recognize that the so-called private system of employment-based insurance that opponents of Obamacare are trying to preserve is itself a system of government funding through tax expenditures (although the Court alludes to this in in its cryptic reference to "the usual business reasons" for preferring to provide health care as a fringe benefit.). We hold no illusions about the political feasibility of getting people to Congress to enact Justice Alito's "Plan B. But what is merely a fragile hope from one point of view is a political opportunity from another. Even if passing such a law proves to be impossible, progressives should not lose this opportunity to demonstrate that by their own logic, the opponents of the contraceptive mandate have conceded that direct government funding would be a better -- "less restrictive" -- way of delivering health insurance than having it funneled through employers (which is what the "traditional" so-called "private" system amounts to).

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