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Liberties out of balance in contraception cases

Can my employer make me pay the cost of practicing his religion? The Supreme Court will decide two cases involving this issue.

The cases are about the Affordable Care Act’s “contraception mandate” – the requirement that employer health plans cover Food and Drug Administration-approved contraceptives without out-of-pocket expense. The employers are among scores of profit-making businesses claiming a religious right to be excused because contraceptives violate their owners’ religious beliefs.

The businesses are not churches or even nonprofit hospitals or universities with religious affiliations. They are a cabinet manufacturer and a chain of arts and crafts stores.

Nevertheless, their owners claim that contraceptive coverage poses a grave threat to their religious liberty.

These cases indeed pose a grave threat to religious liberty, but not to that of the owners of these businesses. Exempting 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 what should be covered under the law.

The First Amendment’s establishment clause prevents the government from requiring people to bear the burden of religions to which they do not belong and whose teachings they do not practice. To be sure, the U.S. government should accommodate religious beliefs and practices but only when doing so does not impose significant burdens on others.

The Supreme Court consistently has condemned government accommodations that shift the cost of practicing a religion from those who believe it to others who don’t. For example, the court struck down a state law that gave employees an absolute right not to work on their chosen Sabbath because of the burden it imposed on others. If most employees were Christian and took Sunday off, the statute would have forced the remaining, non-Christian employees to work every Sunday. This, the court said, violated the establishment clause.

If the court grants these businesses the religious exemption they seek, it essentially would be directing the women who work for these businesses to bear the cost of the owners’ anti-contraception religion. And the burden on the employees is significant. Even generic birth-control pills, which are not appropriate for many women, may cost hundreds of dollars a year. These costs, moreover, would be spread widely throughout the labor force. Consider Hobby Lobby, which brought one of the lawsuits. If the court rules in the company’s favor, Hobby Lobby’s 13,000 employees would underwrite the religious beliefs of the single family that controls the business.

Thomas Jefferson once famously expressed his indifference to whether his neighbors believed in one god or 20: “It neither picks my pocket, nor breaks my leg.” That principle is equally critical today in the face of the remarkable religious diversity of the United States. As a Mormon raised where few other Mormons lived, I have come to appreciate that the First Amendment left me free not only to choose my minority faith but also 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.

Frederick Mark Gedicks is a professor at Brigham Young University’s J. Reuben Clark Law School. He wrote this for the Washington Post.

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