Echoing the policy behind Margaret Hazucha’s excellent critique of recent First Amendment challenges to the Affordable Care Act, I wish to sketch out an argument against these challenges carrying Establishment Clause jurisprudence into the realm of Free Exercise analysis.

In 2002 against an Establishment Clause challenge, the Supreme Court upheld a Cleveland program providing school vouchers low-income families could put towards their child’s tuition at nearby private (often religious) schools.  Zelman v. Simmons-Harris, 536 U.S. 639 (2002).  Later this year in Sebelius v. Hobby Lobby, the Court will hear a Free Exercise Clause challenge to the Affordable Care Act’s mandate that employers provide health insurance covering contraception.   The Court’s reasoning in Zelman undermines the logic of Hobby’s challenge and should spell victory for the ACA.

Yes, Establishment Clause and Free Exercise Clause challenges engage different analyses.  The Establishment Clause forbids the government from favoring one religion over others; the Free Exercise Clause forbids the government from preventing citizens from engaging in religious exercise.  However, as each clause relies on establishing which actions have religious import (Establishment Clause: which government actions favor religions — Free Exercise Clause: which private actions constitute an exercise of religion), analysis as to one clause ought to be relevant to the other.  Further, as the Establishment Clause concerns conduct with has the effect of merely appearing to favor a religion, conduct that does not so appear logically should not constitute an actual religious exercise.

In Zelman, Cleveland’s program allowed families to spend their voucher at a school of their choice.  As 82% of the participating schools were religious schools and these outperformed other participating schools, 96% of participating families allocated their vouchers to religious schools.  With millions of dollars thus given to religious schools, the program was challenged as offending the Establishment Clause (having the purported effect of favoring the religious institutions over other private and public schools).  The Court held, however, that because the money reached the religious schools only after being “filtered” through the private choice of families, it neither appeared to nor actually favored religion.  Central to the holding was the notion that the families’ private choices, absent any perverse incentives, rendered the state’s initial spending religion-neutral.  The same should be said in Hobby Lobby.

Under the ACA, Hobby Lobby must provide its employees with health insurance covering contraception.  Hobby Lobby argues this prevents the free exercise of their religion, and their argument turns on a finding that their health insurance contribution is an action of religious significance.  However, as the initial insurance payments will fund the relevant contraception only after being filtered through employees’ private choices, absent any policy incentivizing contraceptive use, under Zelman this argument should fail.

Hobby Lobby may argue that the money here (the difference in monthly premiums between plans that do and do not cover contraception) is different from a voucher in that it solely funds contraception.  However, respondents in Zelman could have said the same about the inclusion of religious schools in the voucher program: their inclusion could only have resulted in increased religious school funding.  The Court did not buy the argument then, so it should not now.  Contraception use results from a private choice, not an employer-paid premium.




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