5C. RFRA Strict Scrutiny: The Interest in Protecting Newly Created Private Rights

[Please note the UPDATE below.] (For an introduction to this series of posts, see here.)

Today, I’m blogging about what I think should be the heart of the Hobby Lobby case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” This post focuses on an interest that is little talked about in the briefing of the various employer mandate exemption cases, but that I think strikes a chord with many people who have expressed concern about the exemption requests. (The post also assumes that an objector compensatory assessment, of the sort described in the previous post, isn’t available; if it is available as a less restrictive means of protecting health, then it would also be available as a less restrictive means in protecting employee private rights, since it would provide employees with the same benefits as they would get under the unmodified employer mandate.)

1. Let me start by approaching the question indirectly. Say that someone feels religiously motivated to make a pilgrimage to a particular place — for instance, a supposed visitation of the Virgin Mary. And say that this place happens to be on an unimproved parcel of land you own somewhere. That would normally be a trespass, but the pilgrim sues for an exemption from trespass law under RFRA.

I take it that courts wouldn’t, and shouldn’t, create such an exemption. Indeed, the compelling interest test provides a means for courts to avoid creating such an exemption — the compelling interest would be in preventing intrusion on your property rights. And it doesn’t matter that the intrusion would actually cause only modest harm to you, or that allowing the intrusion would cause only modest harm to the social interests served by property law (e.g., the interest in encouraging people to invest in improving land, something you hadn’t done). Even a slight intrusion on your rights is still an injury that a person’s religious beliefs do not entitled him to inflict.

The same, I take it, would apply as to other private rights. (By “private rights” I mean rights of private individuals that are secured against other private parties, not constitutional rights that are protected against the government.) If someone feels a religious obligation to do something that would constitute a common-law private nuisance, I don’t think he should or would get a RFRA exemption. This isn’t because protecting people’s enjoyment of their land is such a “compelling” interest in the abstract. Rather, it’s because once something is recognized as a person’s right — such as the right to enjoyment of property without unreasonable interference — the law has a compelling interest under RFRA in protecting such private rights against intrusion.

And I think this should apply not just to longstanding common-law rights, but also to other rights that legislatures create as social views change. That’s true, for instance, as to copyright (the sounder rationale, I think, for Worldwide Church of God v. Philadelphia Church of God (9th Cir. 2000)), as to antidiscrimination law, as to minimum wage law, maximum hours law, and so on. If the democratic process reaches a judgment (whether or not we think it wise) that, for instance, every employee has a right to get paid at least $7.25/hour, and to get paid time and a half for overtime, these rights would include a compelling interest in denying religious employers the ability to violate those rights.

Moreover, these private rights merit protection even when the law makes them applicable only in some situations, or only with limitations. Nuisance law, for instance, is necessarily limited in scope — many intrusions on your enjoyment of land are allowed because they are on balance viewed as not “unreasonable.” But it doesn’t follow that a person should be free to intrude on your property in a way that the law normally views as a nuisance simply because he feels a religious motivation to do so.

Likewise, employment discrimination bans often exclude many employers — Title VII, for instance, doesn’t apply to small employers. My sense, though, is that they are generally indeed seen as recognizing a private right (though one that was relatively novel when Title VII was enacted) to equal treatment for those employees who are covered. And the government would have a compelling interest in protecting this right against employers who seek an exemption solely because they feel a religious motivation to discriminate. (As I noted before, church and religious schools employers do have a constitutional right under Hosanna-Tabor Evangelical Lutheran Church & School (2012) to discriminate in choice of clergy and other religion-propagating employees, but that’s a First Amendment for a narrow set of employers and a narrow set of employees, not a general RFRA right applicable to all employers who religiously object to antidiscrimination law.)

Indeed, it’s unsurprising that religious freedom rights are often articulated as a right to do what your religion motivates you to do, simply because of your religious motivation, but only so long as it doesn’t harm the rights of others. Jefferson’s defense of religious freedom, for instance, was justified by the argument that someone’s “say[ing] there are twenty gods, or no God …neither picks my pocket nor breaks my leg.” Madison wrote that religion should be “immun[e] …from civil jurisdiction, in every case where it does not trespass on private rights or the public peace.” Similarly, Michael McConnell, one of the leading authors on free exercise law, has argued that we should be “free to practice our religions so long as we do not injure others.” When the law declares that some action is an injury to others — even something that, as with paying low wages or discriminating in employment, is a newly defined right rather than a traditional common-law right — there arises a compelling interest for RFRA purposes in preventing such injuries.

And this interest arises even if the legislature could have constitutionally created religious exemptions to these laws, if it had expressly so chosen. I argued earlier that it wouldn’t violate the Establishment Clause for there to be a religious exemption to the employer mandate. Likewise, it doesn’t violate the Establishment Clause to create at least certain kinds of religious exemptions from antidiscrimination law. See Corporation of Presiding Bishop v. Amos (1987). But just because the legislature is allowed to create exemptions that limit the scope of private rights — or define those private rights narrowly — doesn’t mean that courts, applying RFRA, should likewise limit the scope of private rights.

2. On then to the employer mandate. One way of seeing the mandate is simply as a way of serving some general public goals in providing people health coverage. Congress could have served this goal, if there was political support, through single payer, or through some other scheme. But for political reasons it chose to use the existing employer-based system.

But another way of seeing the mandate is as an allocation of private rights. Federal law has long provided employees with rights to be paid a minimum wage, be protected against having to work excessive hours, be paid extra for overtime (at least in many job categories), bargain collectively, and more. Many people may think such rights don’t rest on a sound moral or practical footing, but the democratic process has disagreed.

Now the democratic process has provided that employees are entitled to health insurance coverage (at least in many places of employment), and health insurance coverage that includes a broad range of contraceptives. The law has created a new private right of employees. And, as with other private rights, there is now — or so the argument would go — a compelling government interest in making sure that this right won’t be restricted simply because the employer has a religious objection to employees getting what they now have a right to get.

The question, as with trespass, nuisance, copyright, and so on, isn’t just whether the country as a whole would greatly suffer if religious exemptions were granted. Rather, the question is whether a claimant’s conduct would violate a (newly recognized) private right of third parties, here employees. And even if it deprives the third parties of this right only to the tune of, say, $500/year, there is a compelling government interest in preventing even relatively low-level violations of private rights.

This is related, I think, to a passage in United States v. Lee (1982), the case that rejected a claimed religious exemption from the duty to pay social security taxes. As I mentioned in an earlier post, the Court began by holding that a religious exemption would inevitably undermine the compelling government interest in collecting revenue. But then it went on to talk in terms that were suggested a focus on the private rights of third parties (the claimants’ employees):

Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees. Congress drew a line in § 1402(g), exempting the self-employed Amish but not all persons working for an Amish employer. The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress provides explicitly otherwise.

As I mentioned in the earlier post, the Court wasn’t saying that a hypothetical statute expressly granting a religious exemption to employers who object to the social security tax would unconstitutionally establish religion. (In a footnote, the Court specifically said that it wasn’t deciding that question.) Nonetheless, I think the Court was implicitly taking the view that social security law creates a private right on the part of employees. If you work for an employer, part of what you’re entitled to is a social security contribution. And an employer can’t assert a Free Exercise Clause right — what today would be a RFRA right — to take that entitlement away from you simply on the grounds that he has religious objections to providing you with this federally guaranteed private right.

3. The question, of course, is whether the right to get the full ACA insurance — including all the preventative care options — through one’s employer should indeed be treated as a private right. Some people will say yes, because it represents part of the package to which, according to the democratic process, most employees are generally entitled as compensation for their toil.

Others will say no. Trespass and nuisance, they would likely say, are different, whether because they have long common-law pedigrees, or because they are rights to be free from intrusion rather than rights to get valuable benefits. They might even say that minimum wage rights, overtime pay rights, and the like aren’t true private rights of the sort that the government always has a compelling interest in protecting.

Or they might argue that minimum wage rights and the like are indeed reflections of moral, rights-based judgment on Congress’s part — a judgment that an employer wrongs an employee by paying him less than some defined decent wage, or by not compensating the employee for taking away too much of his leisure — while the employer mandate is just a technocratic means of providing certain goods and services to the public. This, they would argue, means that there’s no true private right being protected by the law, and courts should feel free to use RFRA as a means of cutting back on Congress’s technocratic planning, at least so long as any such exemption doesn’t excessively undermine any broader compelling societal interests.

An analogy might be the controversy about marital status discrimination in housing. This issue came up in several cases in the 1990s, under RFRAs and state constitutional provisions that had been interpreted as following the Sherbert/Yoder model. We believe that renting to unmarried couples is sinful complicity with sinful fornication, some landlords said. We therefore want a religious exemption from the ban on marital status discrimination in housing. No, said government agencies and would-be tenants — there’s a compelling government interest in preventing such discrimination.

But there are two ways of articulating the government interest: (a) an in¬te¬rest in protecting an asserted private right not to be discriminated against in housing based on marital status, and (b) an in¬te¬rest in making sure that people have a rea¬son¬ab¬le ability to find some decent and convenient place to live.

If courts accept the first interest, either because they themselves believe that such a private right reflects an important moral entitlement, or because they think they should accept the private right as given because of the Legislature’s enactment of antidiscrimination law, then every instance of prohibited housing discrimination would be a violation of a private right. Thus, I think, there would be a compelling interest in protecting this private right against those who claim an entitlement to violate it simply because of their religious views. And no less restrictive means of serving the right would be available.

On the other hand, if courts conclude that the first interest isn’t in play, and that the law can be justified only by the second interest, exemptions might be available. Few landlords seem likely to claim a re¬li¬gi¬ous ex¬emp¬tion from the ban on marital status discrimination in housing. To my knowledge, even of those people who believe that premarital sex or premarital cohabitation is sinful, relatively few believe that renting to unmarried couples is sinful. Nor is it likely that many people who lack such a belief will nonetheless fake it for selfish reasons — refusing to rent to eligible tenants is usually against the landlord’s economic in¬te¬rests. Therefore, in most communities, unmarried couples will find many places to live, even if a few landlords refuse to rent to them because of their marital status.

It’s possible, of course, that in some communities, so many landlords claim the ex¬emp¬tion that unmarried couples won’t be able to find rea¬son¬ab¬le housing. But, under the particularized analysis that RFRA calls for (see Gonzales v. O Centro), this would only justify denying the ex¬emp¬tion in those areas, rather than throughout the whole state. So in deciding on the ex¬emp¬tions, courts would have to hear factual evidence about the amount of housing discrimination based on marital status in the particular community, and decide if there’s enough such discrimination that the ex¬emp¬tion request must be denied in order to adequately serve the in¬te¬rest.

And as it happens, courts were split. Some courts accepted the law as a private-rights-protecting law, and rejected any exemption requests. Others seemed not to treat it as private-rights-protecting, and thus either accepted the exemption request or remanded for more factfinding. Federal religious exemption caselaw didn’t provide any precedents clearly resolving this question.

So how is a court to decide whether the employer mandate is a private-rights-protecting law — which, I’ve argued, cuts in favor of finding a compelling interest in protecting such a private right, even as to relatively minor deprivations — or just a technocratic scheme that doesn’t implicate third parties’ private rights? Again, the precedents don’t really tell us.

4. UPDATE [12/7/2013]: A reader makes an interesting point — violating the employer mandate leads to the employer being liable for a tax penalty, but does not lead to any private right to sue (or even to file an administrative claim) on the part of the allegedly shortchanged employees. This is unlike common-law private rights as well as rights under job discrimination laws, minimum wage laws, and the like, which do give rise to a private right to sue, as well as to the possibility of Executive Branch enforcement.

Might that justify treating the employer mandate as not securing a newly created private right, given that in our legal system private rights are usually enforceable by litigation filed by the rightsholder (whether before courts or before administrative bodies)? I’m not sure whether this is so, but the theory seemed quite plausible, so I thought I’d blog it.