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The Key Supreme Court Case for the Mandate: 'U.S. v. Lee'

In a couple of recent posts (here and here), I tried to explicate the basic framework for looking at the bishops' religious freedom claims: United States v. Smith is the leading apposite Supreme Court case interpreting the Constitution, and the Religious Freedom Restoration Act is the apposite federal law imposing additional restrictions on federal regulations in order to protect religious freedom. Lower courts and state courts may attempt to interpret and qualify those authoritative texts. But those interpretations and qualifications are not binding on the Supreme Court. So is there a Supreme Court opinion that is more directly on point--or as directly as can be, given no two situations are the same? I think there is: United States v. Lee.

Here's the summary:

Employer, a member of the Old Order Amish who employed several other Amish to work on his farm and in his carpentry shop, sued for refund of taxes, claiming that imposition of social security taxes violated his First Amendment free exercise rights and those of his Amish employees. The United States District Court for the Western District of Pennsylvania held that statutes requiring employer to pay social security and unemployment insurance taxes were unconstitutional as applied, and direct appeal was taken. The Supreme Court, Chief Justice Burger, held that: (1) exemption provided by statute for self-employed members of religious groups who oppose social security taxes is available only to self-employed individuals and does not apply to employers or employees, and thus Amish employer and his employees were not within exemption statute; (2) because payment of taxes or receipt of benefits violated Amish religious beliefs, compulsory participation in social security system interfered with their free exercise rights; but (3) religious belief in conflict with payment of taxes affords no basis for resisting tax imposed on employers to support social security system, which must be applied uniformly to all except as Congress provides explicitly otherwise.

So the key question about the mandate seems to me to be this: We know it is constitutionally permissible to make the Amish pay social security taxes for their employees, despite their belief that it is immoral to do so. Since this is the case, why is it constitutionally impermissible (OR impermissible under RFRA) to make Catholic organization pay for basic services that include contraception. (NB: I think that the promise of revised rules will make the connection of Catholic organizations to contraception far less direct than the contribution of the Amish to social security.)

But the broader question is this: Taking into account Lee, does Congress have a compelling interest in defining a basic benefit package that is available to all persons, irrespective of their religious belief, and that cannot be shot down--one benefit at a time--by employers on the basis of their religious objections? It's not just about contraception!

A couple of points: 1. United States v. Lee was decided under the old "compelling interest" test of Sherbert v. Verner. So its rule holds up under RFRA, not merely Smith. There have been some trial balloons floated to suggest that Smith plus its exceptions constitutes a more more stringent test than Sherbert or RFRA. I don't buy it--and I can't see the courts buying it, particularly in the case of big funding cases. 2. Money is money. And chaos is chaos. And chaos about money. . . well, that's not going to happen.

Here is the summary of the holding. Ask yourselves why the Court's reasons don't equally apply to the health care situation.

While there is a conflict between the Amish faith and the obligations imposed by the social security system, not all burdens on religion are unconstitutional. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest. P. 1055.Widespread individual voluntary coverage under social security would undermine the soundness of the social security system, and would make such system almost a contradiction in terms and difficult, if not impossible, to administer. Pp. 1055-1056.

It would be difficult to accommodate the social security system with myriad exceptions flowing from a wide variety of religious beliefs such as the Amish. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15, distinguished. There is no principled way for purposes of this case to distinguish between general taxes and those imposed under the Social Security Act. The tax system could not function if denominations were allowed to challenge it because tax payments were spent in a manner that violates their religious belief. Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax. P. 1056.

Congress has accommodated, to the extent compatible with a comprehensive national program, the practices of those who believe it a violation of their faith to participate in the social security system. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress explicitly provides otherwise. Pp. 1056-1057.

Casuists to your posts!


Commenting Guidelines

Studebaker: you, then, are quibbling over means, not the end. Sort of smacks of Pilate washing his hands.Is it not the end that this church finds so very heinous?

Jen Roth:The government could easily require insurance providers to provide a minimum baseline of coverage, without requiring anyone to purchase such minimum coverage.

David,Here is an article with which discuss the cooperation and points to a number of different views. are numerous state requirements and multiple effected entities. I'm certainly not in a position to judge them. That said, it is possible that some of them made the incorrect choice. My question to you is: once made, does the church get a chance to change to a better choice?

Anonster: Without requiring people to buy insurance, other important aspects of the ACA, such as the requirement for insurance companies to cover people with pre-existing conditions, would be unworkable.

Jen:Mr. Farr, the lawyer appointed by the Supreme Court to defend the court below's holding on severability, made a pretty powerful argument that that's false.

If there's a way to retain the pro-consumer reforms in the ACA and solve the free-rider problem without the individual mandate, I'm fine with that. I have no ideological commitment to it at all. However, supposing that's true and the individual mandate is not necessary, that still does not resolve the question of whether it is proper for the government to set a minimum standard for insurance and what to do when employers wish to provide insurance for their employees that does not meet that standard.

I think the solution is rather simple: if the government wants to ensure minimum standards that have to be met for provision of insurance, they should set up single-payer and run the program themselves. The system of employer-provided health insurance is about as insane as it gets. Why on earth should something as important as healthcare have any connection at all to your employer?

Cathy: Further to Marc's comment above (and as I noted in an earlier comment to one of your posts on Smith), I should think that the creation of a range of exceptions *already* in the ACA, including coverage for preventative services, puts the HHS mandate in a much worse position on the narrow tailoring prong of strict scrutiny (to which the HHS mandate will be subject under RFRA). If the collection of Social Security taxes were subject to a set of exceptions (which the Court in Lee went to great lengths to note is not the case), then Lee would be a powerful case for the government. But the ACA has already been subject to a broad set of waivers from HHS for such things as mini-med plans, and even the preventative services mandate includes a religious exemption, albeit a narrow one. And once the government starts granting some exemptions but denying others (depending, of course, on the grounds for the exemptions), it becomes extraordinarily difficult to satisfy narrow tailoring (see the Washington pharmacist case for just one recent example). So when you ask "[t]aking into account Lee, does Congress have a compelling interest in defining a basic benefit package that is available to all persons, irrespective of their religious belief, and that cannot be shot downone benefit at a timeby employers on the basis of their religious objections?," that only addresses one prong (compelling interest) of strict scutiny and neglects to give due place to the problems for narrow tailoring of the statutory and administrative exemptions already in the ACA. Mike