In the late 1960s, two men refused to fulfill their military service obligations. One was a humanist and the other a Catholic, and both viewed Vietnam as an unjust war. However, they admitted they did not view all wars as unconscionable. This presented a problem because the Selective Service required men to certify that they objected to all war, in any form. They took to the courts in an attempt to make selective conscientious objection — that is, objection to specific wars — valid grounds for classification as conscientious objectors.
As I spent Monday afternoon trying to digest and parse the Hobby Lobby decision, my mind returned again and again to Guy Gillette and Louis Negre, the two men whose opposition to Vietnam reached the high court in 1970. The question their situation posed was whether specificity mattered. Could those who found a single war abhorrent and unjust avoid conscription or did the absence of an absolute antiwar conviction propel them into the armed forces?
Burwell v. Hobby Lobby actually raised the same question, albeit from the corporate, rather than individual, perspective, and in the realm of health insurance rather than military service. Could a religiously-motivated, for-profit employer object to four specific forms of birth control, exclude that contraception from their insurance, and still meet the standards set by the Affordable Care Act (ACA)? In other words, could employers operate as selective conscientious objectors and extricate themselves from the particular treatments they deemed religiously unacceptable?1
Neither the majority nor the dissent referenced wartime conscientious objection. But arguments about the role of conscience in health care cannot be untethered from matters of conscience in war.2 Citizenship is a social contract, with benefits, responsibilities, and obligations that bring the individual into a larger social and economic entity. Those obligations can be uncomfortable and, occasionally, unconscionable.
The objector to war and the objector to contraception — positions rarely considered politically comparable — both assert the primacy of their particular religious and moral commitments over the national social contract (be it the draft or a health care mandate). When the Supreme Court ruled that Hobby Lobby, Conestoga Wood, and other “closely-held corporations” can receive exemptions from the ACA’s contraception mandate based on religious belief, it fundamentally altered the relationship between conscience and the social contract. In 1971, the Court denied individuals the option of selective conscientious objection to war; in 2014, the Court offered corporations untrammeled power in the name of conscience.
What Counts as a Burden Anyway?
Hobby Lobby was not the first business to encounter tension between the rules of commerce and religious conviction. In 1982, in U.S. v. Lee, the Court ruled that an Old Order Amish farmer’s religious objection to Social Security did not warrant an exemption from paying into the system. Religious burdens, the court asserted, were sometimes the cost of doing business. Religious objections to government programs, no matter how genuine, did not always merit accommodation because the larger government program could be more important than an individual’s conscience. “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,” Chief Justice Burger explained. As a result, the farmer had to pay into Social Security, even if doing so violated his religious beliefs.
On its face — and as Ginsburg’s dissent notes — Lee suggests that Hobby Lobby had no case. Voluntarily participating in commercial enterprises meant entering a contract to respect all laws governing for-profit businesses, even those at odds with faith. Employers could not selectively adhere to laws based on their religious beliefs. According to this logic, if “granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees,” so too would exempting for-profit corporations from the contraception mandate impose employer faith on employees.
Alito wants none of this. He quickly dismisses Lee as precedent because it pre-dated the Religious Freedom Restoration Act (RFRA), the statutory — not First Amendment — grounds on which Hobby Lobby was argued and decided. Intended to balance the interests of the faithful with the needs of the state, RFRA created a three-part test by which to evaluate ostensibly religiously-neutral laws: 1) Does the law “substantially burden” the free exercise of religion? 2) If so, is there a “compelling” government interest to do so? 3) Does the government use the “least restrictive means” to accomplish its goals? In other words, does the contraception mandate “substantially burden” Hobby Lobby; does the government have a compelling interest in mandating the coverage of this contraception; and is the mandate the “least restrictive” way to accomplish the goal of providing preventive health care to women? Alito argues that even had Lee been subject to RFRA, it would be irrelevant since there is no less restrictive way of maintaining a tax system than collecting taxes, religious opposition be damned.
Alito’s immediate rejection of Lee accomplishes far more than disavowing a legal precedent. It enables him to avoid the decision’s logic that choosing to participate in the economy brings obligations as well as benefits, and religious belief does not excuse a business from larger social or economic obligations. Contra Alito, who thinks forcing owners of “closely-held corporations” to conform to the ACA would “effectively exclude these people from full participation in the economic life of the Nation,” the Lee court ruled that employers cannot selectively decide which religiously-neutral regulations fit their religious beliefs. The occasional rift between belief and the operating rules of commercial enterprise is simply part and parcel of doing business.3 In Burwell, then, the majority rewrote the rules for deploying conscience in American business practices, turning a prix-fixe menu into an a-la-carte cafeteria.
The Social Contract: Only for Individuals?
The religious picking and choosing enabled by the majority’s opinion in Burwell contravenes the carefully calibrated expansion of conscientious objection in the twentieth century. On Monday, the court erased limitations of conscience pressed upon male citizens — the subject and object of draft laws. The boundaries of the social contract, and conscience itself, took a gendered turn when women’s health became the object of conscience, and corporations, rather than individuals, made religiously-motivated and consequential decisions for American women.
Belief saturates the Burwell decision, with Alito going to great pains to outline the ways in which the owners demonstrated their “sincere religious convictions.” Yet a fundamental covenant of First Amendment law is the belief/behavior dichotomy. Ever since the first federal religion case, the nineteenth-century Reynolds decision outlawing polygamy in Utah Territory, the court has held that the state cannot meddle in belief but can regulate behavior. The beliefs of the Hobby Lobby owners were never at issue — they can believe anything they want.4
But to the degree that sincerity of belief matters, such assessments stem from Selective Service regulations requiring men to show they hadn’t suddenly become enamored with pacifist religions. Going to, and potentially dying in, war is perhaps the biggest obligation imposed on (male) citizens. Unlike business owners who choose to form corporations, male citizens were subject to conscription for much of the twentieth century. As draftees pursued classification as conscientious objectors, they pushed the court to determine the acceptable boundaries of conscientious objection in involuntary circumstances.
This takes us back to Guy Gillette and Louis Negre, the two men who held sincere religious beliefs objecting to the Vietnam War. The problem, the Court argued in an 8-1 decision, was that “conscientious scruples relating to war and military service must amount to conscientious opposition to participating personally in any war and all war.” Conscientious objection was acceptable, but selective conscientious objection was not. The latter, Justice Thurgood Marshall warned, would create a system rife with inequality.5 Men could not pick and choose which wars they approved or rejected.
But selective conscientious objection is exactly what the Hobby Lobby owners wanted and received. They don’t object to participating in the system of employer-provided health insurance (in fact, they claim it’s a religious act to offer it); they object to four specific forms of birth control approved by the system. They sought and acquired selective conscientious objection, a right that neither a war resister nor an Amish farmer could claim.
This is what’s truly unprecedented about the Burwell decision: the corporate right to selectively conscientiously object to a government program.6 As individuals, draft-age men gained rights of conscience over the twentieth century, so long as their conscience was all-encompassing. The state respected the religious and moral beliefs of its male citizens but also enacted boundaries on that conscience.7 Selective conscientious objection represented a belief that could be held but not acted upon. Four decades later, the Court created corporate conscience and leap-frogged over the boundaries on conscientious objection set by involvement in war (certainly a more direct abrogation of conscience than subsidizing an insurance program in which someone might use contraception to which an employer objects).
When women’s healthcare, rather than men’s participation in war, was at stake, rights of conscience pivoted away from individuals and toward corporations. Conscientious objection moved away from men making heady decisions about directly sending themselves to war and toward employers using conscience to impose their beliefs on their employees and the healthcare system writ large. No longer bound by the need for holistic conscientious objection required in Gillette and Lee, corporate conscience now wields power far beyond the individual’s in the face of war.
- In the Selective Service system, conscientious objectors still retained obligations to serve the country, either as noncombatants in the military or through alternative forms of national service. In this sense, the ACA’s tax option parallels the alternative national service programs for COs. Return to text.
- The late 1960s witnessed heady debates about conscience in the wake of Vietnam and litigation leading to the legalization of contraception and abortion occurred at the same time. Moreover, historian Sara Dubow discovered that many letter writers used the Vietnam War to frame their position on abortion conscience clauses. Dubow, “‘A Constitutional Right Rendered Utterly Meaningless’: Federal Conscience Clause Laws and the Politics of Abortion, 1973-2013,” Organization of American Historians Annual Meeting, Atlanta, 2014. Return to text.
- Forcing women to acquire alternative means of birth control — or go without, due to lack of financing or access, and risk pregnancy — does not, apparently, preclude them from ‘full participation in the economic life of the Nation” even though Ginsburg’s dissent demonstrates that women’s equal participation in economic life rests on control of reproductive decision-making. Return to text.
- The majority’s decision turned, of course, on being persuaded that it’s possible for corporations to hold beliefs, which in turn assumes that the owners share a common set of beliefs. Yet in all faiths, believers regularly debate texts, meaning, practices, and interpretation. This alone makes Alito’s claim that a closely-held corporation wouldn’t argue about religious belief suspect, since families are often the site of the most vehement religious debates. On the questionable reading of corporate law in the majority opinion, see Kent Greenfield. Return to text.
- Gillette also predated RFRA, but one has to wonder if Alito would also deem the denial of selective conscientious objection the “least restrictive means” of burdening one’s religion in the face of a compelling government interest in staffing its military. Return to text.
- Here I argue that the decision redefines the nature of conscience claims, certainly a broad new venture. Yet the court’s majority assures readers that its opinion is narrow. And in a sense, it is. It focuses on a statutory claim (rights under the Religious Freedom Restoration Act, or RFRA) rather than a First Amendment one, and it rules on only contraception coverage, not on the myriad other medical matters (vaccinations, blood transfusions, etc) on which religions hold divergent views and devout employers might not want to subsidize via insurance. The dissent, in contrast, casts the majority’s scope as one of “startling breadth.” Which it is as well. It exempts a corporation with thousands of female workers from easy access to birth control and because it provides a legal cornerstone of an argument for enabling companies to opt-out of many more laws “they judge incompatible with their sincerely held religious beliefs.” As both Jeffrey Toobin and Irin Carmon point out, there’s little narrow about this at all (Laurence Tribe is more circumspect). That said, a larger point is key: Supreme Court decisions can be couture suit and mass-produced t-shirt simultaneously — tailored in legal millimeters and found in every home. This is why the decision is ultimately about far more than health care and why national health insurance might solve the contraception mandate but doesn’t resolve everything else a for-profit religious commercial enterprise might do on grounds of conscience. Return to text.
- Expanding conscientious objection beyond organized religion’s stances emerged through two cases, U.S. v. Seeger, 360 U.S. 163 (1965) and Welsh v. U.S., 398 U.S. 333 (1970). Return to text.