Dozens of Roman Catholic institutions in eight different states filed suit against the federal government today challenging the constitutionality of the requirement that employers provide birth control coverage to their employees. In this they joined by a private employer who filed a similar suit in a Missouri two months ago. The plaintiffs all contend that the the federal mandate violates their right to religious freedom. Furthermore, the Missouri legislature has reportedly enacted a statute authorizing employers not to cover contraception or sterilization services.
Here are links to some of the news stories reporting this development:
Blythe Bernhard, St. Louis Post Dispatch, March 16, 2012: St. Louis businessman sues over contraception rule: Company's current coverage includes birth control; owner says he wants to exclude coverage when renewing
Rachel Zoll, Kansas City Star (May 21, 2012): Catholic dioceses, colleges sue over Obama mandate
Amanda Peterson Beadle, Think Progress (May 21, 2012): Missouri Legislature Approves Bill Allowing Employers to Deny Access to Birth Control
This battle has been brewing for months and is coming to a boil. From the standpoint of policy it depends upon your perspective; do you identify with employers or employees? I cast my lot with the workers. I believe that no organization can produce anything or generate revenues without its employees, and that it is perfectly appropriate for the law to protect the legitimate interests of workers. It is appropriate for the government to regulate wages, worker safety, nondiscrimination rules, minimum wages, maximum hours, pensions, and most particularly health insurance. It matters not what the business owner's religion is. He or she or it should have to comply with evenhanded laws protecting the rights and interests of employees.
You may reasonably differ with me on this. You may identify with employers instead of employees. You may, as a matter of economic policy, prefer a more laissez faire approach to employment law. That is a matter of political choice.
But as a matter of constitutional law this is not a close question. There simply isn't any reasonable doubt about the constitutionality of the birth control mandate.
The provision of the Constitution that governs this matter is the Free Exercise Clause of the First Amendment. In recent cases the Supreme Court has established a straightforward four-part test in Free Exercise cases. If the law in question is:
a. A law of general application (that is, a law that applies across the board);
b. A law that is not directed at religion (that is, a law that does not single out religious organizations or religiously-motivated conduct);
c. A law that does not affect any other fundamental right (such as freedom of expression or the right to privacy);
d. A law that does not interfere with the internal decisionmaking of the church (as opposed to external conduct).
The first three elements of this test are clearly satisfied. The requirement that employers provide health insurance coverage for birth control is a law of general application that is not directed at religion and that does not affect any other fundamental right of the employer like the right to privacy or expressive association. The only conceivable argument that the employers might raise is that this law interferes with the "internal decision-making" of the church rather than external conduct.
But that argument is not plausible either. The distinction between "internal decision-making" and "external conduct" was developed earlier this year in the case of Hosanna-Tabor Lutheran Church and School v. EEOC. In that case the Court ruled that the Americans with Disability Act could not be applied against a religious school in the employment of a "called" teacher because of the "ministerial exception" to the nondiscrimination laws. A religious institution has a constitutional right to employ whom it wishes as clergy, and the law may not dictate who may or may not serve in that capacity. With respect to its clergy, a religious institution may discriminate on the basis of race, gender, age, disability, or sexual orientation. The law may not interfere with that choice. To do so is to interfere with the "internal decision-making" of the church.
But it is not plausible to stretch the "internal decision-making" element from Hosannah-Tabor to include the contents of health insurance coverage for employees. The package of benefits that a religious or non-religious employer extends to its employees is "external conduct" and as such is subject to neutral laws of general application.
To the extent that the Missouri statute excusing employers from the birth control mandate conflicts with federal law, it is preempted by the Supremacy Clause.
Wilson Huhn teaches Constitutional Law at the University of Akron School of Law.