Free exercise is a constitutionally protected right that can support special accommodations or exemptions for religious adherents. But religious freedom does not operate in a vacuum; often it can bump up against other important rights and interests, thus creating thorny legal questions about the limits of conflicting aspects of liberty. For decades, the Supreme Court has resolved such conflicts by means of a “third-party harm” principle, embodying the idea that “[a]ccommodations to religious beliefs or observances . . . must not significantly impinge on the interests of third parties.”1 As Professors Douglas NeJaime and Reva Siegel have described, “US law supports claims to religious accommodation, but imposes limits on such claims when the accommodation would inflict significant targeted harms on other citizens.”2
The third-party harm principle most often becomes relevant in cases where individuals demand personal exemptions to otherwise generally applicable laws on the basis that those laws, as applied to them, violate their free exercise or statutory rights. In this context, the application of the third-party harm principle has meant that the Court would generally grant a religious accommodation or exemption where it did not impose too heavy a burden on nonobjecting parties, such as the employees of religious employers3 or the children of religious parents.4 By contrast, the Court was historically wary of granting an accommodation or exemption where doing so would cause an injury or impose a cost on others.5 Importantly, the Court applied the third-party harm principle in a wide variety of cases, and did not attempt to categorically restrict the types of harms that warranted protection.
In recent years, as the Court moved toward a more expansive vision of religious liberty in its application of the Religious Freedom Restoration Act6 (RFRA), the third-party harm principle still shaped the Court’s approach to religious exemptions. This trend was on display even in banner cases for religious refusals, such as Burwell v. Hobby Lobby Stores, Inc.,7 where the Court granted a religious accommodation to the contraceptive mandate only on the assumption that the accommodation sought would have “precisely zero” effect on employees.8
Support for the balanced, harm-oriented reasoning of Hobby Lobby, however, now appears to be waning. In its most recent religious exemption case, Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,9 the Court seemed to shrug off the third-party harm analysis altogether.10 But even if the conservative majority on the Court is increasingly dismissive of third-party harms, rejecting the principle entirely would threaten longstanding precedents that held racially discriminatory exemptions to be impermissible on that basis — a change even the most avid conservatives on the Court have indicated a reluctance to undertake.11 What emerges, then, is a narrowed third-party harm principle, couched in a compelling interest analysis. The Court will find a compelling governmental interest only in preventing a circumscribed range of harms that the Court has previously recognized as especially suspect.
This Chapter charts the journey of the third-party harm principle across decades of Supreme Court religion jurisprudence to show that the Court remained committed to the principle as one of general applicability up until recently. It seeks to reveal the cracks that began to emerge in the consensus around the principle, and demonstrate how a much narrower view of third-party harm ascended following the retirement of Justice Kennedy. Finally, the Chapter maps out a plan for future litigants attempting to limit harmful religious refusals, particularly those aimed at undermining the contraceptive mandate. In short, for better or worse, third-party harm in the future must be precisely defined to fit within this conservative Court’s narrow vision for what constitutes an impermissible burden.
A. The Generally ApplicableThird-Party Harm Principle
By examining cases both before and after the enactment of RFRA, this section demonstrates how the third-party harm principle provided a basis for the Court’s analysis of religious exemptions and accommodations. These cases show that the principle was generally applicable, rather than confined to a particular kind of harm. However, the post-RFRA cases also show that conservatives on the Court, particularly Justice Alito, began to grow weary of the analysis as a constraint on broad religious exemptions. In this sense, they provide a preview of how the Court’s conservative majority might view the harm principle today: not as a framework of general applicability, but as an analysis that asks whether the harm is one that implicates a constitutionally protected interest.
1. The Pre-RFRA Cases.
Concern for third-party harm underlay the Court’s treatment of religious exemptions across a diverse spectrum of cases for many years. Two cases that illustrate the principle particularly well are ones in which the Court actually granted an exemption: the 1963 case Sherbert v. Verner12 and the 1972 case Wisconsin v. Yoder.13 The Court in Sherbert held that under the Free Exercise Clause, South Carolina could not deny unemployment benefits to a Seventh-day Adventist who rejected jobs that would have required her to work on Saturday, her Sabbath — despite the fact that South Carolina law generally required applicants for unemployment benefits to accept offers for available, suitable work.14 In so holding, the Court made sure to note that the exemption would not “serve to abridge any other person’s religious liberties.”15 Similarly, in Yoder, the Court held that Amish parents were entitled to an exemption from Wisconsin’s compulsory education requirement, but only after determining that the exception would not cause harm to their children.16 The Court emphasized that despite the parents’ objection to conventional education beyond eighth grade, the Amish educational system was nonetheless adept at preparing the community’s children to be “self-reliant and self-sufficient participants in society.”17 The religious objectors in Yoder won their desired exemption because their request caused no harm to children, or, as the Court put it, because the exemption “interfere[d] with no rights or interests of others.”18
By contrast, in United States v. Lee,19 the Court declined to grant an exemption from the payment of social security taxes to an Amish employer.20 The decision was again based on the third-party harm principle: “Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”21 The third-party harm principle appeared again in the Establishment Clause case, Estate of Thornton v. Caldor, Inc.,22 where the Court struck down a Connecticut statute that guaranteed religious employees the right not to work on their observed Sabbath.23 The Court found that in enacting the statute, the state legislature had impermissibly disregarded the burdens such a policy would have on employers and other employees.24
The third-party harm principle was also at work in a series of civil rights–era cases in which religious adherents sought exemptions from laws geared toward eliminating racial discrimination. In one such case, Newman v. Piggie Park Enterprises, Inc.,25 a segregationist restaurant owner challenged the constitutionality of the 1964 Civil Rights Act26 on the grounds that the Act “‘contravene[d] the will of God’ and constitute[d] an interference with the ‘free exercise of [his] religion.’”27 The Court treated the claim as barely even meriting discussion, dismissing it in a footnote as “patently frivolous.”28 Similarly, in Bob Jones University v. United States,29 two religious private schools challenged an Internal Revenue Service policy denying tax-exempt status to private schools that engaged in racial discrimination.30 The Court once again rejected the idea that religious belief merited grounds for an exemption, citing to Lee to hold that some limitations on religious liberty must be warranted.31 The “governmental interest [in eradicating racial discrimination in education] substantially outweigh[ed] whatever burden denial of tax benefits place[d] on petitioners’ exercise of their religious beliefs.”32
If read in isolation, these civil rights cases might seem to demonstrate only that the Court saw a uniquely compelling governmental interest in rooting out racial discrimination, rather than being emblematic of any doctrinal approach to religious exemptions writ large. When viewed alongside cases such as Sherbert, Yoder, Lee, and Caldor, however, it becomes clear that the Court’s stance toward racially discriminatory religious exemptions was entirely consistent with its stance toward harmful exemptions more broadly. Taken together, these cases demonstrate that the third-party harm principle was a general principle, not one limited to preventing racial discrimination.
2. Third-Party Harm Post-RFRA: Continuity and Slippage.
In more recent years, the Court’s treatment of religious objections became markedly more expansive, thanks in large part to a generous interpretation of RFRA. RFRA was the direct result of the Court’s decision in Employment Division v. Smith,33 where Justice Scalia, writing for the Court, held that religious exemptions to neutral, generally applicable laws that only incidentally burdened religion were not constitutionally required.34 The law, which passed with broad, bipartisan support,35 sought to undo the damage of Smith by restoring the Court’s previous strict-scrutiny-style balancing test from cases like Sherbert and Yoder.36 Under RFRA, the federal government may not substantially burden religious exercise unless it is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.37
Left in the hands of an increasingly conservative judiciary, RFRA didn’t just change the type of scrutiny applicable to religious refusal claims; it heralded in a new era of religion in public life and helped make religious freedom a primary tool of dismantling liberal social policies.38 In two landmark cases, Hobby Lobby and Masterpiece Cakeshop v. Colorado Civil Rights Commission,39 the Supreme Court ruled in favor of religious objectors, sounding alarm bells throughout the progressive legal world.40
Yet, as several scholars noted, the Court’s reasoning in this period still reaffirmed the third-party harm principle, and thus placed meaningful limits on religious exemptions.41 Indeed, even after the passage of RFRA and the subsequent shift in the Court’s treatment of religious exemptions, the majority of the Court still regularly invoked the third-party harm principle in its religious exemption cases. The principle was therefore entirely compatible with the post-RFRA state of affairs.42 In Cutter v. Wilkinson,43 for example, the Court reaffirmed that “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”44 In Hobby Lobby, the Court held that RFRA required the extension of the contraceptive mandate accommodation process to certain religious employers, but it did so on the presumption that “[t]he effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”45 And, finally, in Masterpiece Cakeshop, the Court granted an exemption to a state nondiscrimination statute, but was also careful to reaffirm the third-party harm principle, this time framed in terms of the need to protect the “dignity and worth” of same-sex couples.46
Although the Court’s holdings in these cases reaffirmed the third-party harm principle, they simultaneously evinced the beginnings of a movement, driven by Justice Alito, to limit the application of the principle to instances in which specific types of harm are at play. A skepticism was visible just below the surface — and quite literally just below the line — of Justice Alito’s opinion for the Court in Hobby Lobby. In what some have called a “puzzling” footnote,47 Justice Alito directly addressed the government’s argument that a religious exemption should not be permissible where it would operate to deny third parties government benefits.48 To Justice Alito, it could not be true that any third-party harm would render an exemption impermissible:
Otherwise, . . . the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless.49
By contrast, in concurrence, Justice Kennedy appeared eager to reaffirm a broader third-party harm principle, which would seem to protect against a large subset of interests, including insurance coverage for contraceptives. “Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion,” Justice Kennedy wrote.50 “Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.”51
Disagreement over the breadth of the third-party harm principle was also evidenced by how Justice Alito and Justice Kennedy respectively hearkened back to the racial antidiscrimination line of cases. Justice Alito, who seemed uncomfortable with third-party harm as a generally applicable framework, still expressly rejected as unfounded the Hobby Lobby dissent’s alarm “that discrimination in hiring, . . . on the basis of race, might be cloaked as religious practice to escape legal sanction.”52 “Our decision today provides no such shield,” Justice Alito wrote, because “[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”53 Although the Court’s holding in Hobby Lobby, with its emphasis on “precisely zero effect” on women, did ultimately reaffirm a broad third-party harm principle, Justice Alito’s singling out of racial discrimination as uniquely worthy of eradicating without tying this statement back to the broader harm principle seems to suggest that, in his view, certain harms were more deserving of prevention than others.
Conversely, Justice Kennedy’s majority opinion in Masterpiece Cakeshop again reaffirmed the Court’s commitment to shielding racial antidiscrimination statutes from religious exemptions.54 But this time, it did so by citing to Piggie Park for an articulation of a broader third-party harm principle: “it is a general rule that [religious and philosophical objections] do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”55 Justice Kennedy, unlike Justice Alito, framed the prohibition on racially discriminatory exemptions as stemming from a larger third-party harm principle that would encompass harms resulting from discrimination based on characteristics other than race alone.
Put together, these cases tell us that some recognizable version of a third-party harm principle still held sway over the Court until recently. Yet in subtle ways, it is possible to see a deep skepticism beginning to emerge on the part of Justice Alito. Though racial discrimination was a type of harm that would never be permissible, Justice Alito left open the possibility that other harms might not merit the same protection.
B. The Post-Kennedy Era
During Justice Kennedy’s later years on the Court, he came to play an important role in shaping the institution’s religion jurisprudence and ensuring the continuation of the broadly construed third-party harm principle.56 As the previous section details, Justice Kennedy’s opinions in Hobby Lobby and Masterpiece Cakeshop show his efforts to balance religious freedom against the rights of women and LGBTQ+ individuals, using third-party harm as a barometer with which to come to the optimal equilibrium. With Justice Kennedy’s retirement from the Court and the ascendance of conservative Justices Kavanaugh and Barrett, however, Justice Alito’s narrow conception of the third-party harm principle may ultimately win the day. This new dynamic was on full view in the Court’s most recent religious exemption case, Little Sisters, where the majority of the Court did not discuss third-party harm at all.57 Still, though the disregard of third-party harm in Little Sisters is troubling, the Court’s new approach is arguably not an absolute abandonment of third-party harm, but rather a reformulation.
This section shows that even if Little Sisters could be read literally as jettisoning the third-party harm principle completely, conservative members of the Court and advocates for broad religious exemptions still seem to be committed to upholding the Court’s civil rights line of cases.58 Thus, third-party harm must still matter after Little Sisters. But rather than being a generalizable principle, third-party harm may now be limited by what the harm is and who it is coming to.
1. Little Sisters and Third-Party Harm.
Little Sisters was the Court’s most recent foray into religious exemptions. At issue in the case were the Trump Administration’s sweeping moral and religious exemptions to the contraceptive mandate, which allow nearly any employer with an objection to contraception to deny their employees comprehensive health insurance coverage.59 The Court upheld the exemptions despite the fact that by the government’s own estimate, up to 126,400 people would immediately lose insurance coverage for contraceptives.60 In stark contrast to its holding in Hobby Lobby, where the Court stated that a permissible accommodation to the mandate would have “precisely zero” effect on employees, and in Masterpiece Cakeshop, where the Court reaffirmed a broader third-party harm principle, the Court’s reasoning in Little Sisters indicated that third-party harm was not relevant to its analysis at all. Instead, in his opinion for the Court, Justice Thomas dismissed the harm question as a mere “policy concern” that would be more appropriately directed at Congress.61 Although its procedural posture gave the case the patina of a straightforward decision about agency rulemaking requirements, and the majority opinion ultimately declined to address the Trump Administration’s argument that the exemptions were mandated by RFRA, the decision’s disregard of third-party harm was still significant. First, the fact that the exemptions were created by the government rather than requested by a religious objector does not explain the disregard of third-party harm, since the Court has in the past struck down exemptions on the grounds that they were impermissibly harmful.62 Further, the majority did not respond to briefing that raised the third-party harm issue, even though it was explicitly referenced by Justice Ginsburg in dissent.63 Indeed, based on its total dismissal of the issue of third-party harm, the decision could be read to imply that all antidiscrimination laws are at risk of being undermined through religious exemptions.64 Unlike in Hobby Lobby and Masterpiece Cakeshop, neither the majority opinion nor Justice Alito’s concurrence gave any assurance that the outcome would have been different if the Trump Administration’s regulations had been in regard to exemptions from racial antidiscrimination law.
Even so, Little Sisters probably does not put Piggie Park and the civil rights line of cases in danger. Justice Alito in Hobby Lobby explicitly stated that racially discriminatory religious exemptions would never be permissible, and the Court implicitly reaffirmed Piggie Park by citing to it in Masterpiece Cakeshop. While the Court did not offer similar assurance in Little Sisters, there is also no evidence that the conservative Justices have changed their minds on this point. Nor do advocates for religious exemptions seem to believe the Court is ready to lower its shield over racial antidiscrimination law anytime soon.65 Deep anxiety about this issue was very clearly on display in oral arguments for Fulton v. City of Philadelphia,66 where discussion of how the Court might distinguish between racially discriminatory exemptions and exemptions harming other groups consumed much of the questioning.67
Since neither the Court nor those seeking exemptions seem willing to stretch religious exemption doctrine so far as to allow racially discriminatory exemptions, some types of harm must still matter. It would thus be more apt to read Little Sisters not as a complete rejection of the third-party harm principle, but rather as the first instance in which the conservatives on the Court did not need to give credence to the generally applicable third-party harm framework seemingly favored by Justice Kennedy.68
2. Narrowing the Third-Party Harm Principle.
If we assume that Justice Alito and other advocates for broad religious exemptions do in fact draw the line at racially discriminatory exemptions, how might the conservative-dominated Court broaden religious exemptions without undermining the civil rights cases Piggie Park and Bob Jones? The answer may be that some third-party harms still matter, thus saving the civil rights line of cases. But now it matters whom the harm is directed at and what the harm is. In the RFRA context, this means that the government will no longer be able to satisfy its compelling interest burden by citing the general need to prevent harm. Rather, it will need to point to a specific constitutionally grounded interest in preventing harm directed at a suspect class.
This is arguably the analytical framework demonstrated by Justice Alito in his Little Sisters concurrence. Unlike the majority opinion, which won over two of the Court’s liberal Justices by declining to address the RFRA question head on, Justice Alito would have gladly found that RFRA demanded the Trump Administration’s exemptions.69 Crucially, without Justice Kennedy’s tiebreaking vote, Justice Alito was finally able to reject the Government’s compelling interest in upholding the mandate, which he had “assumed for the sake of argument” in Hobby Lobby.70 From there, Justice Alito made two important maneuvers. First, he framed the government’s compelling interest as that of “providing free contraceptives to all women.”71 Second, he proposed a fortified compelling interest test: for the government to establish a compelling interest, it “would have to show that it would commit one of ‘the gravest abuses’ of its responsibilities if it did not furnish free contraceptives to all women.”72 According to Justice Alito, there was no compelling interest in restricting exemptions to the contraceptive mandate because there was no constitutional right at stake — while “[t]he Court has held that there is a constitutional right to purchase and use contraceptives[,] . . . [it] has never held that there is a constitutional right to free contraceptives.”73
Justice Alito ultimately tied the question of compelling interest into the question of harm. Because there was no constitutional right to “free contraceptives,” there was therefore “no . . . burden” on employees not covered by the mandate; these employees were “simply not the beneficiar[ies] of something that federal law does not provide.”74 However, Justice Alito’s language — that there is “no burden” — is arguably a misnomer, as he simultaneously acknowledged that there were likely to be at least some employees for whom the exemptions would impose a burden.75 Justice Alito’s concurrence is then more accurately read as stating a newly confined theory of third-party harm, under which the deprivation of “free” contraception is not a sufficient burden that would render the government’s interest compelling. In Justice Alito’s words, failing to provide free contraception to all women is simply not “one of ‘the gravest abuses’”76 the government can commit because there is no affirmative right to free contraception in the first place.77 Notably, one legal observer, Kevin Russell, believed Justice Alito might have been suggesting this type of analysis even as early as in his opinion for the Court in Hobby Lobby.78 Russell noted Justice Alito’s insistence that the decision would not operate to allow racially discriminatory religious exemptions, but rather than assume the same would be true for other types of discrimination, Russell believed that the question was “surely open to debate.”79 Russell guessed that it might come down to how the Court defined a compelling governmental interest — precisely how Justice Alito framed the issue in Little Sisters. “[T]he government may only have the ‘compelling’ interest required by RFRA in proscribing racial discrimination,” Russell predicted, “but not sex, disability, or sexual orientation discrimination.”80 Russell likened this type of analysis to that applied in Eleventh Amendment cases, where the Court must decide whether Congress may abrogate state sovereign immunity for suits alleging civil rights violations.81 In these cases, the Court evaluates “the scope of the constitutional right at issue” by looking to the degree of scrutiny afforded the affected class in “prior decisions under the Equal Protection Clause.”82 Similar reasoning could apply in the religious objection context.83
It is worth highlighting that Justice Alito’s narrowing of the harm principle is deeply flawed for at least two reasons. First, by recognizing only certain constitutionally cognizable harms as relevant to the third-party harm analysis, Justice Alito failed to account for potential Establishment Clause violations caused by exemptions’ negative externalities.84 As other scholars have compellingly demonstrated, the Court’s establishment jurisprudence clearly recognizes the “third-party harm principle, which provides that religious exemptions may not be structured in a manner that shifts substantial burdens to nonbeneficiaries without any consideration of their interests.”85 And even exemptions created pursuant to RFRA are subject to the limits set out by the Establishment Clause.86 In the context of the contraceptive mandate, for example, “by shifting the material costs of accommodating anticontraception beliefs from the employers who hold them to their employees who do not, RFRA exemptions from the Mandate violate an Establishment Clause constraint on permissive accommodation.”87
Second, the language of RFRA supports a broad interpretation of “compelling interest,” not Justice Alito’s newly cramped view.88 The reason is simple: RFRA was meant to “restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder,”89 cases that were themselves illustrative of the third-party harm principle and were decided in a period in which the generally applicable third-party harm principle reigned supreme.90 The Court in that era did not seem to question the existence of a compelling interest; the real weight lay in the determination of whether a given exemption would burden third parties.91 The Court during those years granted exemptions where they “interfere[d] with no rights or interests of others”92 but denied them where they would “operate to impose the [claimant’s] religious faith” on others.93
Despite these flaws, given Justice Ginsburg’s untimely passing and Justice Barrett’s subsequent confirmation, it is likely that some version of Justice Alito’s narrowed conception of the third-party harm principle will have majority support on the Court for many years to come. Justice Alito’s concurrence could provide a roadmap for threading the needle on religious exemptions, allowing the Court to uphold Piggie Park and Bob Jones while also continuing to allow broad, discriminatory exemptions in the realms of LGBTQ+ rights, contraception, and abortion. From this perspective, not all harms are created equal — different classes are afforded different levels of constitutional protection that dictate the extent to which a particular harm will outweigh a religious objection.
C. Implications for the Contraceptive Mandate
If the Court is indeed moving toward a narrowed conception of third-party harm, then it will be increasingly important to define with precision the harm caused and the rights infringed by religious exemptions. This is a more straightforward enterprise in some cases than in others. As Professors NeJaime and Siegel have shown, for example, the harm caused by discrimination against LGBTQ+ individuals in public accommodations is one that the Court in Masterpiece Cakeshop already recognized as sufficiently compelling to potentially outweigh a claim for a religious exemption.94 The harm analysis for other types of discrimination is less straightforward, thus rendering certain groups more vulnerable to burdensome religious exemptions.
The contraceptive mandate is perhaps the best example of this vulnerability.95 Justice Alito was technically correct when he wrote that the Court has never recognized an affirmative right to free contraception for all women. And, in past litigation, advocates for the contraceptive mandate have not successfully grounded their arguments in any constitutional rights framework.96 This section shows why the framing of the third-party harm in the Court’s contraceptive mandate cases has made the mandate especially vulnerable to undermining through religious refusals. If, however, litigators could reframe the harm as a form of sex discrimination, which the Court has recognized a compelling interest in rooting out, then religious exemptions would be harder to justify even under the Court’s narrowed third-party harm analysis.
1. “Free Contraceptives [for] All Women.”
Hobby Lobby showed that so long as a broad, generally applicable third-party harm principle stood, it was not necessary for the government or the Court to grapple with what exactly the government’s compelling interest was.97 As several observers noted, the government and those opposed to religious exemptions did little in contraceptive mandate litigation to clarify what exactly was at stake if the Court were to grant a religious accommodation to the mandate for religious employers. Shortly before Hobby Lobby, some noted the difficulty that mandate supporters had in “articulat[ing] the precise constitutional liberty that RFRA exemptions . . . would burden: there is no constitutional right to have one’s employer pay for contraceptives, and RFRA exemptions would not interfere with the reproductive privacy right of employees and their family members to purchase contraceptives with their own money.”98 This struggle appeared to continue into the Supreme Court litigation itself, where commentators again characterized the government’s description of its interest as “incomplete.”99 The government’s account “appropriately emphasized a compelling interest in ‘public health,’ but it did not develop what was at stake for women as a matter of individual autonomy and self-determination.”100
It is important to reiterate, though, that when the generally applicable third-party harm principle stood, it was not necessary to identify a precise constitutional liberty undergirding the government’s compelling interest — it was necessary only to identify the harm. Justice Kennedy, the swing vote in Hobby Lobby, underscored the continued salience of the general third-party harm principle in his concurrence when he stated that protecting “the health of female employees” was a compelling governmental interest, without attempting to ground access to contraception in any constitutional rights framework.101
In future litigation, it seems more likely that the conservative majority will instead apply a narrowly applicable third-party harm principle. In this view, Justice Alito’s framing of the harm in Little Sisters as that of “provid[ing] free contraceptives to all women” was strategic.102 Of course, many would argue that providing free contraceptives to all women is, or at least should be, a very compelling governmental interest, one that implicates numerous benefits to public health and gender equality.103 But if the analysis now turns on whether there is a constitutionally cognizable right at stake, then the harm — presumably the inability of many people to pay for contraception — would likely not be sufficient to outweigh the religious interest. While the Court has recognized a privacy-based liberty interest in abortion and contraception, it has never recognized “a constitutional entitlement to the financial resources to avail [oneself] of the full range of protected choices.”104 That is, the Court recognizes a right to be free from government intrusion in making certain reproductive health decisions, but it does not recognize an affirmative right that would make those decisions accessible for all people regardless of economic status.105 The challenge moving forward will be to find a different way to frame the harm at stake in contraceptive mandate litigation so that the Court cannot so easily dismiss a claimed governmental interest as uncompelling.
2. Reframing the Harm: Sex Discrimination in Employment.
Given the vulnerability of the current asserted governmental interest, it would behoove future litigants to redefine what is actually at stake. The central point is that Justice Alito’s framing mischaracterized the harm in Little Sisters and thus mischaracterized the governmental interest. The contraceptive mandate is not about providing “free contraceptives for all women,” but rather is about ensuring that if an employer offers health insurance to employees as a form of compensation, the employer-sponsored plan may not exclude from coverage a service that only women and non-cis male people use. When the government creates, or the Court mandates, an exemption that itself allows employers to discriminate on the basis of sex, that implicates serious equal protection concerns.
That the purpose of the contraceptive mandate was to combat sex discrimination is clear from the legislative history of the Women’s Health Amendment. After Senator Barbara Mikulski introduced the Women’s Health Amendment on the floor of the Senate in 2009, senator after senator spoke of their belief that the exclusion of cost-free coverage for services used exclusively by women constituted discrimination by insurance companies.106 When employers themselves refuse to cover these services, it is equally discriminatory, but now implicates employment discrimination and a failure to pay women and non-cis male employees equally for equal work.
This is precisely the type of discrimination that Congress proscribed in enacting Title VII of the 1964 Civil Rights Act, which states that “[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”107 This bar on sex discrimination requires equality in “receipt of benefits under fringe benefits programs,” such as insurance coverage.108 The accommodation process extended to some religious employers in Hobby Lobby did not run afoul of Title VII’s prohibition on compensation discrimination because, at least theoretically, under the accommodation employees did not lose out on seamless access to cost-free preventive services, including contraceptives. Those services were simply provided by the insurance company rather than the employer itself.109 The same cannot be said of the Trump Administration’s broad religious exemption, which took away completely a benefit employees previously received as part of their compensation, this time with no assurance that the insurance company or the government would step in to fill the void.110
To the extent that Justice Alito’s narrowed principle would look for a specific constitutional claim, the reasoning applicable to a Title VII sex discrimination claim is arguably transferable to the equal protection context.111 The exemptions upheld in Little Sisters thus implicate the government’s interest not in providing “free contraceptives for all women,” but rather in eradicating sex discrimination.112 The Court treats sex discrimination as deeply constitutionally suspect, and it has long recognized a compelling governmental interest in eradicating such discrimination.113
Still, framing the denial of contraceptives as sex discrimination is not without its complications. First, there is not complete agreement about whether the exclusion of contraception from insurance plans constitutes sex discrimination. Prior to the passage of the Affordable Care Act, several federal district courts recognized that an employer’s failure to include birth control in its health insurance plan constituted sex discrimination in violation of Title VII.114 In Erickson v. Bartell Drug Co.,115 a district court held that “when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes.”116 The court rejected the offending employer’s argument that its “exclusion of all ‘family planning’ drugs . . . [was] facially neutral,”117 concluding instead that “the exclusion of prescription contraceptives . . . [was] in no way neutral or equal.”118 In 2007, however, the Eighth Circuit reversed a similar lower court decision, holding instead that the exclusion of all contraceptives from health insurance plans did not constitute sex discrimination.119 Still, the Eighth Circuit’s reasoning would be inapplicable in a case where, as in Hobby Lobby, an employer’s plan included coverage for male birth control — that is, vasectomies — but excluded coverage for female birth control.120
Second, even assuming the Court accepts that the government’s interest is in eradicating sex discrimination, which the Court has recognized as compelling, would the Court find it as compelling as the government’s interest in eradicating racial discrimination?121 On the one hand, the Court treats sex discrimination as deeply suspect, and its analysis of sex discrimination has crept toward what one might see in the racial discrimination context. In Roberts v. United States Jaycees,122 the Court noted that the “stigmatizing injury [from discrimination], and the denial of equal opportunities that accompanies it, is surely felt as strongly by persons suffering discrimination on the basis of their sex as by those treated differently because of their race.”123 This conclusion is similarly reflected in the Court’s equal protection jurisprudence. Although the Court technically applies only intermediate scrutiny to sex discrimination, that intermediate standard has become extremely heightened — so much so that many scholars have come to view the Court’s treatment of sex discrimination in equal protection cases as the embodiment of a “de facto” Equal Rights Amendment.124 Even so, how close the scrutiny applicable to sex discrimination gets to the strict scrutiny of racial discrimination cases is a serious subject of debate in the legal academy, and it may turn out that the difference between strict and heightened intermediate scrutiny is a meaningful one in a religious exemption case.125
Even taking these complications into account, however, the strategy of framing the harm in contraceptive mandate litigation as the harm of sex discrimination in employment has several important benefits. First, in a case where an employer’s insurance plan excluded from coverage a service used exclusively by women and non-cis male people, it would be difficult for the Court to conclude that such an exclusion was not discriminatory. Second, again, the Court has recognized the eradication of sex discrimination to be a compelling interest and applies heightened scrutiny in its equal protection cases. Though this might not ultimately be enough to save the contraceptive mandate if the conservative majority is laser focused on limiting the harm principle to race, at the very least framing the harm in terms of discrimination would put employees and the general public on notice about what precisely is at stake. Rather than being about the revocation of a free benefit, exemptions to the mandate would be about employers taking away a portion of employees’ earned compensation.126 Reframing the harm this way would make it more difficult for even a conservative-dominated court to ignore the third-party harm at issue.
As this Chapter demonstrates, the third-party harm principle has historically offered a prudent way to balance the interests of religious objectors against other important societal interests.127 In keeping with the principle, religious adherents were often granted religious accommodations and exemptions, but not where doing so would cause significant harm to other populations. With the passing of Justice Ginsburg and the confirmation of Justice Barrett, however, it seems nearly inevitable that the Court’s trajectory on religion will be toward granting more and more extreme religious exemptions — even where they threaten the health and lives of fellow citizens.128 The balance that once existed now seems ready to tip entirely to the side of religious objectors, largely at the expense of society’s most marginalized populations.129 Still, all hope should not be lost. Some harms must still matter if the Court is to uphold its civil rights line of cases, and this means there is room for tactful lawyering to make a real difference. Those concerned with protecting civil rights may win out if they can reframe the harm from religious objections as one the Court has previously treated as constitutionally suspect. If the Court does not accept these arguments, at the very least litigators can work to reveal what is really at stake in these more sinister religious exemption cases: the right to be free from discrimination and the tyranny of others’ religious beliefs.