Implied Consent

Today, the Supreme Court will hear arguments on whether the
Affordable Care Act’s “contraception mandate”—the requirement that employers
provide employees health insurance that covers contraception and
abortifacients—impermissibly infringes on the religious liberty of religiously
motivated corporations. The case represents the latest volley in a culture war
of sorts as courts and academics—not to mention employers and employees—try to
reconcile the law’s fundamental commitment to two principles increasingly
emerging at loggerheads: religious liberty and women’s health.

The litigation over the contraception mandate has consumed jurisdictions
around the country with over three hundred plaintiffs filing over ninety
lawsuits, arguing that the government is infringing on their religious liberty.
These cases all raise the following: Does the law provide religiously-motivated
for-profit corporations religious liberty protections?

Strong proponents of religious liberty contend that we
should treat for-profit corporations just like other religious
corporations—that is, just like houses of worship. The mere fact that
for-profit corporations are trying to make money shouldn’t impact the religious
liberty they are granted. So long as those companies are sincerely motivated by
the religious conscience of their management, they should have identical
religious liberty protections. Put differently, a religious institution is a
religious institution, regardless of whether it is turning a profit. And if
providing health insurance coverage that includes contraception violates the
institution’s religious conscience, then it should not be required to do so.

Opponents of this view see for-profit corporations as
fundamentally different from, for example, houses of worship. A church is a
non-profit entity solely dedicated to the pursuit of religious objectives. Companies
entering the public marketplace have very different objectives in mind. And the
cost of participating in the for-profit world is that you must comply with the
rules of the marketplace, including providing insurance plans even when they contravene
your religious conscience. In this way, for-profit companies aren’t true
religious institutions—they seek to maximize profits and therefore have to play
according to the market’s rules.

But notwithstanding their diametrically opposing worldviews,
these two perspectives both begin from the wrong premise. They both think that
we can figure out which institutions are truly religious and which ones aren’t.
And so the only question is whether for-profit institutions are “truly”
religious. This type of governmental weighing of religious content is deeply
problematic. Can the government really determine how religious a company is? Do
you need a statement of religion in your corporate charter? Prayer services at
work a certain number of times a week? How much is enough?

At bottom, instead of asking what the institution, so to
speak, “is,” we should be asking what the employees knew. Did the employees
know they were signing up to work an institution that had core religious
objectives? This focus on employees—and not employers—tracks the Supreme
Court’s original explanation for why we give religious institutions special
constitutional protections. Back in the nineteenth century, the Supreme Court
explained that churches have authority over their internal decision-making
because “All who unite themselves to such a body do so with an implied consent
to this government.” This central idea—“implied consent”—captured the idea that
it is the members of an institution that give it special constitutional protections.
Where people join an institution to achieve religious objectives—like the
pursuit of faith, prayer, and salvation—they are giving that institution the
authority to make decisions about religious matters. To think otherwise would
be counterintuitive: If you decide to join an institution to pursue faith and
salvation, then you can’t challenge the institution’s right to make decisions
about faith and salvation when you disagree with those decisions.

Now, of course, there are limits on this principle. Where a
religious institution engages in conduct that the law finds deeply
problematic—what the law calls “compelling government interests”—then the law
overrides religious liberty protections. Religious institutions can’t engage in
fraud or violence, but not because they don’t have religious liberty—but
because religious liberty gives way to more important values.

What that means is that institutions receive religious
liberty protection when their members or employees have implicitly granted them
those protections. And that means that members or employees have to know what
the institution is all about. Churches are obvious candidates for these
religious protections—and this is why the law often refers to a “church
autonomy” doctrine.

But some for-profit corporations might also qualify. In the
current cases before the Supreme Court, one of the plaintiffs—Mardel—is an
affiliated chain of thirty-five Christian bookstores which exclusively sells
Christian books and material. Another plaintiff, the arts and crafts chain Hobby
Lobby, buys hundreds of full-page newspaper advertisements inviting people to
“Jesus as Lord and Savior.” By contrast, Conestoga Wood Specialties—the third
plaintiff currently before the Supreme Court—does not appear to have engaged in
any public manifestations of religion that would have alerted employees to its
religious objectives. This distinction makes all the difference if you take the
perspective of potential employees—and not employers—when deciding what
institution should receive religious liberty protections.

This shift in perspective is not only important as a legal
matter; it is a fundamentally different way of looking at religious liberty. For
many, the idea that religion can be exempted from complying with the law is
dangerous. Religion, on these accounts, should not be a get-out-of-jail-free
card that leaves others suffering the consequences. But that’s why
understanding religious liberty from the perspective of others is so important.
An inquiry focused on employees and not employers ensures that employees don’t
get blindsided by claims of exemption from the law. At the same time, it also
ensures that the employers receive religious protections when they are up-front
and candid about their sincerely held religious beliefs—and that we don’t
withhold those liberties on account of artificial distinctions—like whether or
not the institution also earns a profit.

Michael A.
Helfand is an associate professor at Pepperdine University School of Law and
associate director of the Diane and Guilford Glazer Institute for Jewish
Studies.

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