Richard C. Schragger
Micah J. Schwartzman

Hobby Lobby and the Establishment Clause, Part II: What Counts As A Burden on Employees?

CO-AUTHORS Nelson Tebbe


Last week, we argued here and elsewhere that a basic constitutional issue has been overlooked in the religious freedom challenge to the contraception mandate. In brief, the missing argument is that granting a statutory exemption to the mandate for religious employers would violate the Establishment Clause by imposing a significant burden on the employees who are the intended beneficiaries of the mandate. A longstanding nonestablishment principle prohibits the government from lifting its burden on the religious beliefs of one party when that would mean shifting the cost to third parties who do not share those beliefs. Now that the Supreme Court has agreed to hear Hobby Lobby and Conestoga Wood, it is imperative that this constitutional issue be aired.


In this post, we want to address one objection to that argument, namely that if religious employers are exempted from the mandate their employees will suffer no burden at all. According to this objection, employees have no right to health insurance that covers contraception in the first place. Therefore, when religious employers are relieved of the obligation to provide that coverage, employees suffer no burden whatsoever. They are simply put in the same position they were in before Obamacare: without coverage for contraception.


This objection presents a baseline question. If the normal state of affairs is that no one has contraception coverage, then denying that coverage imposes no burden (even if it is unfair). If, however, the baseline for comparison is a world in which everyone can legitimately expect affordable health insurance that includes contraception, then removing that coverage imposes a burden. Which is correct?



Richard C. Schragger, Micah J. Schwartzman & Nelson Tebbe, Hobby Lobby and the Establishment Clause, Part II: What Counts As A Burden on Employees?, Balkinization (December 4, 2013).

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