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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!

About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.

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Thank you for this post. Although I am not a lawyer and have not researched these cases, it seems to be as good an apposite as exists. I'm sure some will argue that social security laws are of a different species than those regarding morality of contraception, but I still think your argument would prevail since , in my mind, they both are presented as moral arguments that touch on the core of a faith traditon and/or religious belief. (That leaves aside the dissent about HV's conclusions.) I am curious about how this was received in the Amish world and what their practices have been since then and how any of their authoritiy figures have dealt with this.This "fortnight" may bring these kinds of unintended consequences as scholars and so many of us others start to re-examine the issues and very likely are not in total accord with the bishops' panic. I am hopeful that that someone will write about the "selective conscientious objection" which was supported by the bishops documents, but as far as I know, has not ever been recognized by the state. I wonder if the bishops ae still willing to defend that religious liberty for military who joined freely, but find themselves in what they'd consider an unjust war though they are not pacifists.

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. This is an obvious distinction from the issue of contraceptive coverage -- it simply isn't true that leaving people to buy their own contraception (just as they buy their own food or housing, both of which are much more expensive) would undermine the soundness or administrability of anything whatsoever.

Cathy, Thanks for all of the very helpful posts on this. It seems to me that the the fact that the employees of many of the Catholic institutions in question may be non-adherents makes the Bishops case even worse than the Amish you describe here. Is this part of the judicial calculus, or is the court only considering the potential threat to the religious identity of the employer?

Stuart, I don't think it can be framed as just about contraception. The Church-of Zero-Population growth may want not to cover pregnancy! Eric, I think you are exactly right. The interests of the employees are very important to the Court. And the idea that you can just work somewhere else doesn't fly.

First of all, who cares? Why does it hurt me or anyone else if some people don't want pregnancy coverage?Second of all, maybe the issue goes even further, and some employers won't want to pay for even hugely important life-saving services. Well, then, perhaps judges, with all of their legal training and ingenuity, could figure out some sort of line-drawing exercise by which they could tell the difference between relatively cheap and insignificant services vs. expensive and life-saving services. Just for the sake of argument, let's call it a "balancing test." These are not unknown in the law, eh?

@Studebaker (4/17, 10:07 & 10:22 am) It may or may not hurt you if someone's insurance plan doesn't cover pregnancy because their employer claims a moral/religious objection because the employer is a faithful adherent of the Church-of-Zero-Population-Growth. But I think you'd agree that it *would* hurt an employee whose wife had a difficult pregnancy that required multiple hospitalizations, months of bed rest with home health care, and then a long, difficult and complicated delivery---all resulting in tens, if not hundreds of thousands of dollars of additional medical bills to pay. Yes?

Well, Luke, that's why I would support the idea (floated by John Kerry, if I recall) to have the government pick up or heavily subsidize medical bills above a certain threshold. Why bring employers into it? But if employers are (because of ideological and political inertia) necessarily part of the "insurance" system, why be so rigid as Cathy suggests? I.e., she seems to think there should be no freedom whatsoever to opt out of even the most conscience-violating coverage, because otherwise-intelligent judges are completely incapacitated from making the sorts of distinctions that they make in every other area of the law (e.g., between drastic emergencies like you mention vs. trivial and routine expenses).

Well, Luke, thats why I would support the idea (floated by John Kerry, if I recall) to have the government pick up or heavily subsidize medical bills above a certain threshold. Why bring employers into it?Stuart,I don't understand how your support of government subsidizing medical bills above a certain threshold has any bearing on Luke Hill's point. I have heard some people claim that churches, charities, and the local community should take care of all people in need. It is a lovely idea, but it is only an idea, as is the idea of the government subsidizing medical bills above a certain threshold. I don't see what part alternative schemes that haven't a prayer of being enacted play in the debate over how healthcare should be delivered.

@Studebaker (4/17, 10:35 am) Thanks for the reply. It seems to me that Prof. Kaveny is merely looking at established constitutional law and the precedence laid out by previous Supreme Court decisions. If that seems "rigid", then it may say less about her and more about the current state of constitutional law.The larger point I'd make about the "religious/moral conviction" argument (aka, the "Taco Bell" exemption), is that it seems to be not only a slippery slope but a steep one as well.What's to stop an employer who has moral qualms about the use of alcohol from obtaining an exemption from alcohol-related medical expenses for her employees?Or an employer who has moral/religious objections to the consumption of meat from obtaining an exemption from covering treatment of diseases definitively linked to eating meat?Or treatment of lung cancer for smokers by an employer who object to smoking?Now, if those treatments get shunted onto the federal government somehow, those employers now have lower labor costs than their competitors, and thus a cost/price advantage in the marketplace. Wouldn't this likely lead to a situation in which large numbers, if not the vast majority, of employers quickly discover and articulate their "moral objections" to all sorts of behaviors that result in higher medical expenses?

"Granting an exemption from social security taxes to an employer operates to impose the employers religious faith on the employees." It seems to me that a consistent undercurrent in all our threads on this topic area a question of moral imagination w.r.t. religious liberty. When you read the mandate, do you imagine yourself as employer or employee? The court, at least here, imagined itself in the shoes of the employee. Most anti-mandate folks (e.g. Studebaker's posts here and elsewhere,) assume the imaginary role of the employer, while pro-mandate folks tend to assume the imaginary role of employee. Another term for this is "solidarity." Or as the old union song went, "Which side are you on?"Love the posts on legal precedent. They're very helpful, and a great window into how members of the court may (one hopes!) be guided. Keep 'em coming, please!Oh, as to "Why bring employers into it?" I mourned the fall of the public option, but so went the congress. Obama held on to it as long as he could. Maybe the bishops, instead of railing about "religious liberty" in the very flawed way they have been, might instead become champions of the public option? Or do they only attack, never build up?

Professor Kaveny: I am not a lawyer by training. However, over my adult lifetime, I devoted a good deal of time and effort to teaching students how to write argumentative essays. With this background in argumentation, I will try my hand in developing a line of argumentation that might serve the present purposes of the Catholic bishops in the USCCB. I hope that my effort here is not too far afield from the work of casuists that you invited to join the exchange that you have initiated here.In a case known as Citizens United, the Supreme Court recently affirmed that as legal persons (a legal fiction, as it were) corporations have free-speech rights that should allow them to make certain kinds of political contributions.But not only Catholic dioceses but also most Catholic hospitals in the U.S. and most Catholic colleges and universities in the U.S. are legal corporations. As legal corporations, they are also legal persons (in the legal fiction about legal persons).In effect, each of these legal persons is individually a Catholic legal person. In a dotCOMMONWEAL thread started earlier by Grant Gallicho, I referred to these Catholic institutions as super-persons and said that the Catholic bishops would prefer to have these Catholic super-persons as super-supporters of official church teaching against artificial contraception. So in the present dotCOMMONWEAL thread I am now changing my terminology, so that instead of referring once again to these Catholic institutions as super-persons, I am now referring to them as legal persons, as I did in my response to Jack Barry in another thread on dotCOMMONWEAL that Professor Kaveny started earlier.Shouldn't each individual Catholic legal person have the rights of freedom of religion that are granted to each individual American citizen?If not, why not?Let me re-state this line of argument. If corporations as individual legal persons have free-speech rights in connection with political contributions, shouldn't individual Catholic legal persons as corporations have freedom-of-religion rights in connection with health insurance offered through the Catholic institutions?If not, why not?I hasten to explain that I do not necessarily agree with this line of argument.I have constructed this line of argument in the spirit of playing the Devil's Advocate, advocating in support of the Catholic bishops in the USCCB and their campaign regarding freedom of religion in connection with the Obama administration's contraceptive-coverage mandate.I have devoted a good deal of time and effort to teaching argumentation as pro-and-con debate, and I have worked out in my own mind how I might argue against the line of argument that I have set forth here, based on argumentation that I have read elsewhere regarding the contraception-coverage mandate.However, for the time being, I prefer to set forth only this line of argument in the hope that Professor Kaveny and others interested in the Catholic bishops' campaign regarding freedom of religion in connection with the Obama administration's contraception-coverage mandate might respond to it as they see fit to do so, if they see fit to do so. But perhaps this line of argument that I have set forth here is not even fit for a response.As I've suggested before, I think that Professor Kaveny should gather her observations and reflections together in a full-fledged essay to be published in COMMONWEAL, preferably more than a few weeks before July 4, 2012.

Lisa -- I imagine myself (and it takes little imagination, as it is reality) as an employee too. Why should I be forced to spend any part of my wages on an insurance package covering an absurd variety of items and services that I will never need, that make no sense as part of "insurance" in the first place, and that are covered only because of the simple-minded people in the world who think that anything labeled "healthcare" has some magical quality such that it has to be "covered by insurance" rather than paid for directly like everything else in life?

The Chicago Tribune ran a story this morning (George tries to clarify bishops' opposition to health care rule) quoting Cardinal George. "The issue is more than religious freedom, George said. It's 'theft of identity,' he said. But most importantly, the cardinal said, the legislation highlights a growing cultural conundrum. 'What is the place of church in society that is secularizing itself very, very rapidly?' he said. 'if the use of religious pluralism is to remove all religious institutions from public life, it's going to be a very different society than what we have now.'"Theft of identity? A society that is rapidly secularizing itself? The use of religious pluralism to remove all religious institutions from public life? Really??? This is the war theyre fighting and it has very little to do with the issue thats actually out there in reality-- the one about whether the state can say that certain rights of employees trump other rights of employers. I dont think the bishops have any desire engage this fairly specific and complex balancing act. If they did, one or two of them might actually be engaging in debate on the points Prof. Kaveny and others have raised. But they dont. They just want to ramble on. They get to stand up for something, it gets them press that isnt about sexual abuse, and they get to think theyre being prophetic.

Put another way, you're imagining yourself as the employee who wants to get free stuff (even if it's cheap to begin with). Fine, but there are other employees that you're most certainly not sympathizing with: those who don't want the "free" stuff as part of their wages.

Agree, Jeanne.It might be a good time for bishops of other denominations to speak up and demand religious liberty. E.g., the Mormons have been prevented by law for over a century from practicing polygamy. Why? It's waaay past time to end that idiotic and unjust discrimination and let them enjoy on earth what they will enjoy in heaven.

http://abclocal.go.com/wtvd/story?section=news/politics&id=8590227The Bishop of Raleigh criticizes the President of the United States for opposing an amendment to the state's constitution meant to enshrine discrimination against one group of taxpayers. (Gays.)

Lisa Fullman,In Bob Jones Univ. v. United States, 461 U.S. 574, 603-05 (1983), the Courts decision reflects a distinction between an individuals religious beliefs those of an an employer (generally the individual gets the better deal). However, in Bob Jones the Court ruled that racial discrimination by colleges and universities based on religious beliefs allowed the government to deny federal tax benefits even though "Denial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets.

The IRS site has a form http://www.irs.gov/pub/irs-pdf/f4029.pdf that allows members of religious groups conscientiously opposed to insurance to request exemption from Social Security and Medicare taxes. If both employee and employer have obtained an exemption no Social Security or Medicare taxes are due.For the Amish, as I understand it, the issue was that Social Security payments were kept separate and intended to support "Old Age, Survivors, and Disability Insurance", and for a number of reasons the Amish and some other Anabaptist groups find the concept of buying insurance morally objectionable. Other taxes they pay.

Ann Y, that is a good point. Congress CAN do this, but it doesn't HAVE to do it as a matter of a FIRST AMENDMENT obligation as understood by the Court.And of course, not all employees of Catholic institutions are Catholic.

I want to thank Cathy for her excellent work in helping us understand the legal issues in play here (as well as others who've talked about related legal findings.)I think the issues of religius liberty and contraception before the law are thorny.What happens legally wil be said to be justice.As I've read this and the related threads here, I though tabout the excellent NYT magazine piece i read about Robert caro Sunday and how struggles like this and the other major issues of the day are really about power and its use.And I think that's the case here: no matter what legally happrns, I continue to think the leadership of the uS Church's approach is about power. The Cardinal George statement just cited reinforced that with me.Unfortunately, when I look at the doings in Philly evealed or the silencing of priests in ireland, I am convinced that power is a major factor motivatiung our church's leaders. I thought also about the Pauline Palm Sunday reading that we have the mind in us of Jesus who was not about power .I'm convinced that whether USCCB wins or loses this battle -and that is what they have made it - there is a deep wound at hthe heart of my Church bleeding from the need to assert one's self.I find their gospel message to be "it's all about us" and I think that very sad.

By blaming the secularization of the country on the U. S. government, Cdl. George gets the RCC hierarchy off the hook for its role in the shrinking of the Catholic Church. It's not the politicians' secularizing the country that is a simple cause of the losses, it's in large measure the Church's inadequate leadership of the Church that's doing it. Consider, for instance: it was Cdl. George himself who as late as 2006 moved that known pervert priest around, not Barack Obama.

Put another way, youre imagining yourself as the employee who wants to get free stuff (even if its cheap to begin with). Studebaker,Just a reminder that when employer-provided insurance pays for something, even if no co-pay is required, it is not "free." Things you work for are not free. Salaries are not free money, and benefits are not free, either. Also, most workers pay part of the cost of their insurance coverage. In 2011, the average monthly worker contributions were $77 for single coverage and $344 for family coverage.

Cathleen, Is it not a key difference that in this case we are talking about an actual tax, whereby the Government, in turn, provides a service (Social Security.) In the Mandate, there is no 'tax,' but rather an organization with standing to claim a conscientious objection it being required to buy from another private entity a service (contraceptive insurance) that it finds objectionable?

Cathy,I'm not a lawyer. That said, I'm not sure this is an apposite case because it involves the collection of taxes. Taxes are the lifeblood of the government; no government can exist without the authority to collect taxes. How those taxes are spent can never be a direct religious issue for any number of reasons, but primarily because once it enters the governments hands it is out of the taxpayers direct control and hence responsibility.The HHS mandate however does not involve the collection of taxes but rather the forced provision of particular service. That means, the religious institution is being coerced to act in direct contravention to its conscience. In my judgment, that is a much different situation for both the government and the citizen involved than the payment of taxes.Two other points: First, even the case you cite shows the difference between taxes and this situation since the Amish had to first pay the tax and then sue for a refund while many suits are progressing against the ACA. And second, almost every article I've read suggests that the provision of contraceptive services directly by the government and funded through taxes would present no first amendment issues.

Most anti-mandate folks (e.g. Studebakers posts here and elsewhere,) assume the imaginary role of the employer, while pro-mandate folks tend to assume the imaginary role of employeeLisa,I disagree with this proposition. There is only one role being coerced in the HHS mandate, the employer: he must provide something. Even if the mandate is imposed, the employee can readily procure the contraceptive services away from the insurance policy. This remains true whether I view myself as the employer or employee.That said, some posters have expressed the erroneous logic that an employer who does not provide contraceptive services is somehow infringing on them. As long as contraceptive services are freely available in the marketplace, which they now are, that is patently false. The only fact is that the price is different for the employee, not a 'rights' issue.

Gerelyn @ 1201 pm: I made a similar argument in a recent issue of the house organ of the Diocese of Oakland, CA (http://www.catholicvoiceoakland.org/2012/03-26/forumlet.htm) and here is the house response to that:Editor's note: "The right to freedom of conscience and, in a special way, to religious freedom taught in the Declaration Dignitatis Humanae of the Second Vatican Council is based on the dignity of the human person and not on a non-existent equality among religions or cultural systems of human creation. Paul VI taught that 'in no way does the Council base this right to religious freedom on the fact that all religions and all teachings, including those that are erroneous, would have more or less equal value; it is based rather on the dignity of the human person, which demands that he not be subjected to external limitations which tend to constrain the conscience in its search for the true religion or in adhering to it.'" Doctrinal Note on some questions regarding the Participation of Catholics in Political Life," CDF (Doctrine of the Faith), 2002: No. 8.]

jbruns and Bruce,Although the details of the mandate haven't been written yet, you both inaccurately (in my opinion) describe religious organizations being forced to provide something. But they are not. If they provide third-party insurance, the insurance company may offer to provide contraceptive coverage to individual employees who may choose to accept it or not. It is assumed (rightly or wrongly) that the employer will pay nothing extra whether or not its employees opt for contraceptive coverage. For the self-insured, there are a number of proposed ways for finding funds to pay for the coverage so that the self-insured organization will not have to bear any of the costs. People may believe that the "accommodation" does not put enough distance between the religious employer and the ability of the employee to get contraceptive coverage, but I don't see that the religious employer is being forced to do provide anything.

Yes, David, you're not disagreeing with me: as I said, pro-mandate people are naive enough to think that anything insurance covers is "free."

David, I'm failing to see the distinction. The employer, granted, does have a choice: either offer a health insurance package that includes free contraceptive coverage to those individuals who wish to use those services, or to pay a fine and offer no health insurance benefit. My earlier statement assumed an understanding of that technicality, or are you saying that this statement also is not correct? BTW, I have no problem with the mandate per se.

Jimmy, your letter was great. (I was hoping someone here would bring up the matter of female genital mutilation in the Religious Freedom and Muslims thread, but no one did that I'm aware of.)The editor's answer expresses the bishops' position perfectly, imho. ------------I wonder if Catholic bishops approve of Amish bishops who permit "dentists" to pull all the teeth out of the mouths of girls and women who fail to observe various rules. http://www.amishabuse.com/DanPadden.htm

David,I think you are inaccurately describing the mandate. Without the policy, there is no 'offer' of contraceptive service, ergo the employer is providing it. And there is no 'may'; it 'must' be offered. Thats the issue. The cost is an irrelevant distraction: the bishops complaint of religious freedom would be valid even if providing the service reduced the cost of the entire policy by half, or any other amount. Money does not equal morality.

Gerelyn, Shall we say the Church's position on Religious Freedom is evolving?"Pope Pius IX made the point in no uncertain terms in 1846 in his encyclical Quanta cura and the accompanying Syllabus of Errors: "The state must recognize [the Catholic Church] as supreme and submit to its influence. . . . The power of the state must be at its disposal and all who do not conform to its requirements must be compelled or punished. . . . Freedom of conscience and cult is madness." (R. J. McClory)In other words, the State must support freedom to practice religion...as long as it is the Catholic religion.

Bruce,Suppose an alternative plan is offered. Say, the government will provide contraceptive coverage to anyone who has insurance. Or, say, the government will provide contraceptive coverage to anyone who has a job. Would you then argue that religious organizations were "forced" to provide contraceptive coverage, because if they provided insurance, their insured employees could then get contraceptive insurance from the government? Or would you say if government-provided contraceptive insurance were provided to everyone who has a job, religious organizations would be forced to say they could no longer hire people, because by doing so they would be enabling them to get contraceptive insurance?

Ask yourselves why the Courts reasons dont equally apply to the health care situation.Simple: "The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest."Identify the overriding governmental interest. I guarantee in advance that the overriding governmental interest driving the larger healthcare reforms is going to be too broad to allow one to say with a straight face that requiring contraceptive coverage, sans religious exemptions, is "essential" to accomplishing that interest.Someone above also pointed out that administrability won't be a concern here, like it very much would be under exemptions to paying into Social Security. Now, if the government set up single-payer and provided contraceptive coverage, and the bishops complained then that they were being forced to pay for something they regard as immoral, they would lose for the reasons cited in Lee. But that's not what the government has done. And yes, it very much matters how the government tries to do things, so arguments akin to, "What, they could do it themselves, but they can't mandate that it be done?" fail. Finally, people are ignoring the incredibly narrow definition of religious employers in the mandate. That's what the bishops are addressing when they talk about an attack on "identity."

Further to what DN says above. Say that religious institutions are exempted from providing or making available any kind of contraceptive coverage. How will they prevent the salaries/wages that they pay to their employees from being spent on contraceptives? Whether they provide it/make it available via a benefits program or direct pay, "their" money will go for contraceptives.

David Nickol and Jimmy Mac:Part of the problem is that's not what's happening here. Those would be different situations calling for a different response. The facts, it turns out, matter. There's not a single principle you can apply and get obvious results for every situation. Each one differs. Not because the teaching about contraception changes, but because the moral calculus is sensitive to context. By paying taxes, you fund the government. By funding the government, you indirectly fund the health insurance plans that government provides as part of its benefit packages for federal employees. Some of those health insurance plans surely include contraceptive coverage. No one is trying to change that, as far as I can tell, and no one is complaining that their tax dollars are funding contraceptive coverage for people. Hypocrisy! No, the circumstances changed in enough morally relevant ways to make the outcome of our evaluation change.

Here's the form oyu have to fill out to be exempt from paying Social Security and Medicare taxes because of our religios beliefs: Several things are worth noting from the fom:1. Simple religious objection will not get you an exemption. Your must belong to a:"religious group ...recognized as being in existence continuously since December 31, 1950, as providing a reasonable level of living for its dependent members, and as being conscientiously opposed to public or private insurance."A representative of he religious group must sign the form and a representative of Social Security must confirm that the group does actually provide medical care and elder care for its members. The form requires you to give up all right to receive those from the government. 2. The exemption only covers situations where both the employer and he employee are exempt. If an exempt Amish employer hires an English (non-Amish) employee, the employer must pay both the employer's and employee's share of Social Security and Medicare taxes to the IRS. 3. Similarly for an Amish employee of an English or non-exempt Amish employer. The employer must deduct the employee's share of taxes and pay them to the IRS. The core of this special exemption for Old Order Amish and some other groups is that they really do have thir own private system of providing adequate health and old age assistance to thir members. At the time of Lee, the only exemption was for self-employed workers and Lee was guilty of not witholding from his employees and paying over the taxes to the IRS.

Whether they provide it/make it available via a benefits program or direct pay, their money will go for contraceptives.The involvement of the employer matters, doesn't it Jimmy? Imagine two situations: 1. An employee is paid with money, and out of his free will, choose to buy a gun. Is the employer responsible for the gun? 2. An employee is paid partly with money, and partly with a yearly voucher good for one "free" gun. If the employee does, in fact, use the free gun voucher to get a gun, is the employer perhaps a wee bit more involved than in the first scenario? (Note: it doesn't matter whether the gun cost the employer anything or whether the gun really was somehow "free" to the employer -- the voucher is still something that the employee got access to only through the employment arrangement.)

The beginning should have read:Heres the form you have to fill out to be exempt from paying Social Security and Medicare taxes because of your religious beliefs:http://www.irs.gov/pub/irs-pdf/f4029.pdfSeveral things are worth noting from the form:

Part of the problem is thats not whats happening here.Anonsters,The question is . . . Exactly what is happening here? Part of the problem for those objecting to the contraceptive mandate is that it can't be said exactly what is happening, because the new rule has yet to be written. So I would ask you and Bruce to explain exactly what you object to. It is not, it seems to me, that religious organizations are being "forced" to do anything. Perhaps we can say that they are being put in a situation where, if they do something they want to do (provide employees with insurance coverage), something they object to will happen (some employees will get coverage of contraception). For some people, the difference between being forced to do something, on the one hand, and having the undesired thing happen as a consequence of what is done voluntarily, on the other, is not enough of a difference to matter. But there is a difference. I don't think one needs to apologize for using analogies to get at how the two things are different. No analogy is perfect, but my analogies are trying to get at the distinction between being forced to do something, and being in a position where if you do one thing, another thing will follow.

Imagine another situation: One in which actual Catholic moral theology was used by bishops, or their defenders, to explain how it is that the proposed accommodation violates Catholic moral principles.

To add to Professor Kaveny's quotes from Lee:"To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, see, e.g., Thomas, supra; Sherbert, supra, but there is a point at which accommodation would "radically restrict the operating latitude of the legislature." Braunfeld, supra, at 366 U. S. 606. [Footnote 10]"FROM JUSTICE STEVENS CONCURRING OPINION"The clash between appellee's religious obligation and his civic obligation is irreconcilable. He must violate either an Amish belief or a federal statute. According to the Court, the religious duty must prevail unless the Government shows that enforcement of the civic duty "is essential to accomplish an overriding governmental interest." Ante at 455 U. S. 257-258. That formulation of the constitutional standard suggests that the Government always bears a heavy burden of justifying the application of neutral general laws to individual conscientious objectors. In my opinion, it is the objector who must shoulder the burden of demonstrating that there is a unique reason for allowing him a special exemption from a valid law of general applicability.""The Court's analysis supports a holding that there is virtually no room for a "constitutionally required exemption" on religious grounds from a valid tax law that is entirely neutral in its general application. [Footnote 2/3] Because I agree with that holding, I concur in the judgment."

David,Your analogies all fail. They fail for the simple reason that the government is not the actor here; if it were it would be a different story. Your analogies basically assume a government program with certain criteria to qualify. That is not what is happening here; there is no government program, there is a government requirement. Programs and requirements are different. You are partly correct that the employers are not forced to offer insurance. However, the economic coercion is quite substantial. Its a $2000 penalty for every employee if no insurance is offered PLUS the employees income tax due on the money that would be used for insurance. In other words, if we assume that labor prices are roughly fair across employers before the mandate, then an employer who refuses to be co-opted by the government requirement must provide its employees the same dollar value of the medical benefits but with after-tax dollars making it (1/(1-tr) higher cost plus the 2000 penalty. Practically, many of these employers are likely faced with providing a medical policy which will have contraception attached or going out-of-business.And while you and Grant seem to continue to disagree, if there is no employer policy, then the employer is not involved in providing contraceptive services. If there is an employer policy, then the services are available. That makes it very obvious to me that the employer is involved regardless of the HHS subterfuges. The official church position is that contraception, sterilization and abortifacients are immoral. And the bishops believe the cooperation is material enough for culpability to attach.We can analogize and imagine all we want, but facts are stubborn.

Grant -- even you seemed to think, at least for a while, that the original rule was an infringement on religious liberty. The "accommodation" is not economically or morally different from the original rule. Perhaps, then, you could revisit whatever reasoning convinced you in the first place.

David Nickol:You come very close, in my opinion, to nailing it when you say: Perhaps we can say that they are being put in a situation where, if they do something they want to do (provide employees with insurance coverage), something they object to will happen (some employees will get coverage of contraception).Except that in my view it's not the case that providing employees with insurance coverage (that doesn't contain coverage for things the Church considers to be morally wrong) is "something they want to do." Rather, it's something their religion commands them to do. Providing employees with insurance is a part of treating your employee with the dignity they possess as a human being and is a part of running a morally responsible business.But even if it weren't, the mandate also penalizes with fines employers who do not provide health insurance to their employees.

But even if it werent, the mandate also penalizes with fines employers who do not provide health insurance to their employees.Anonsters,The "penalty" for not providing employees with insurance is far less than the cost of providing insurance. One of the criticisms of "ObamaCare" is that it will result in employers ceasing to provide health insurance to their employees because it will be to their advantage to do so.

The official church position is that contraception, sterilization and abortifacients are immoral. And the bishops believe the cooperation is material enough for culpability to attach.Bruce,I have not read such an argument by the bishops, could you please tell me where I can find it? One of the problems with that argument is that many Catholic organizations (and at least one entire diocese) have already complied with state requirements. Are the bishops arguing those who comply with a state or federal mandate are doing evil?

Hi, Cathy. Thanks for the post. I thought to add one possible distinction with Lee. In Lee, the Court actually found that the required payment of SS benefits was a substantial burden on the Amish. It simply found that the state could nevertheless satisfy strict scrutiny, because of the "comprehensive national program" (in your quote above) represented by social security and the collapse of the system should exemptions begin to be granted to it. But a possible difference between social security and the health care reform law is that the latter does not create such a comprehensive program (we don't have a socialized or universal system) -- there are many ways to purchase insurance, some private, some by alternative methods which have been -- or could be -- created by legislative or administrative action, and in other ways. So an important difference from Lee is that granting an exemption to the HHS regulation here would not result in the sort of systemic collapse that would have (in the Court's view) resulted in Lee, such that the system "could not function" if exemptions were granted. By extension, I also think that the last part of the strict scrutiny test -- whether there are less restrictive means for the government to achieve its interest in ensuring that all employees have access to contraception -- will be difficult for the government to satisfy.Marc

Identify the overriding governmental interest. Setting a minimum standard for health insurance that applies across the board and that any health insurance consumer can thus be assured of getting. Government sets minimum standards for products all the time.

Studebaker: "2. An employee is paid partly with money, and partly with a yearly voucher good for one free gun. If the employee does, in fact, use the free gun voucher to get a gun, is the employer perhaps a wee bit more involved than in the first scenario? "Except in this case, it's a bit more like the yearly voucher is good for one free product from Wal-Mart, and the employee chooses to buy a gun with it. I wouldn't consider the employer involved in that decision at all.

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.http://www.thepublicdiscourse.com/2012/02/4817There 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

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