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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