In March, the Supreme Court will hear a pair of cases on whether for-profit employers can claim a religious exemption to the Affordable Care Act’s requirement that employer health plans cover contraceptives without any out-of-pocket expense because the use of contraceptives violates their owners’ religious beliefs.
In a Washington Post op ed this week, Fred Gedicks, the Guy Anderson Chair at BYU Law School (and a prior T&S guest blogger), flips the case on its head, claiming that it is actually exemptions from the “contraception mandate” that pose a threat to religious liberty. The op ed briefly summarizes a journal article that Gedicks has co-authored in the forthcoming Harvard Civil Rights-Civil Liberties Law Review. As Gedicks closes the op ed with an explicit appeal to his “minority faith,” I’m curious to what extent Gedicks’ line of reasoning resonates with other Mormons.
In brief, Gedicks argues that “[e]xempting ordinary, nonreligious, profit-seeking businesses from a general law because of the religious beliefs of their owners would be extraordinary, especially when doing so would shift the costs of observing those beliefs to those of other faiths or no faith. The threat to religious liberty, then, comes from the prospect that the court might permit a for-profit business to impose the costs of its owners’ anti-contraception beliefs on employees who do not share them by forcing employees to pay hundreds of dollars or more out-of-pocket each year for contraception and related services that should be covered under the law.”
These costs, Gedicks says, “would be spread widely throughout the labor force,” as Hobby Lobby, the arts and crafts chain that is plaintiff in one of the pending Supreme Court cases, alone has in the neighborhood of 13,000 employees. A Supreme Court decision in the company’s favor would, according to Gedicks, result in these 13,000 employees “underwrit[ing] the religious beliefs of a single family.”
Gedicks concludes by noting that “As a Mormon raised where few other Mormons lived, I have grown to appreciate that the First Amendment not only left me free to choose my minority faith but also free to live without paying for the religious choices of others. Americans must be free to practice their respective faiths, but also free from bearing the burdens of their employer’s faith. The Supreme Court should ensure the liberty of all Americans by rejecting the efforts of for-profit businesses to impose their owners’ religion on employees.