December 17, 2013 - LAW AND RELIGION FORUM

Helge Årsheim has an interesting piece on the Immanent Frame blog which recapitulates some of the debates that he has been sponsoring at his PluRel blog (to which I gladly contributed) and offers some thoughts of his own, particularly as respects the meaning and scope of religious freedom in the international sphere. Below is an extended chunk from Helge’s post. The only little addendum to it that I’d make here is that the extent to which US domestic law is “splendidly isolated” from international law is, of course, famously a matter of both descriptive and normative contestation within the US legal community! Here’s Helge:

The international law on religious freedom is not limited to religion, but denotes a set of legal measures set in motion to protect beliefs and their ”manifestations” from undue limitations and interference. Explicitly covering beliefs well beyond the confines of any traditional definition of religion, the right as it is codified in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and surrounding legal texts – collectively known as the International Bill of Rights – does not require legal systems, whether international or domestic, to decide on the merits of one religion over another. The expansive nature of the freedom of religion or belief in international law thus provides an unequivocal answer in the negative to the overarching question in all dealings with religion in political or legal contexts: whether religion is a special, set apart, sui generis concept that requires particular attention and protection over other concerns. Religion, as it is construed in international legal texts, is just one subset of an expansive range of protected beliefs that can be subjectively held without any form of state interference. While the inclusion of terms like “manifestation,” “observance,” “belief,” and “conscience” are drawn from, and therefore clearly favor, certain religious traditions to the exclusion of others, their interpretation in the practice of the UN Human Rights Committee are explicitly detached from a religious framework.

Once the serene, inclusive, and clear-cut concept of religious freedom in international law is confronted with the myriad cultural, historical, political and academic iterations of religious freedom that dominate domestic legal practice, however, the content of “religion and belief” moves from being non-theist and inclusive to a more ambivalent status: in these competing visions of what religious freedom may or may not be, the contents of both “religion” and its relation to “freedom” is hotly contested. These contestations take place across a wide array of societal spheres, and concern the origin and metaphysical status of religion in society and the political sphere; what groups, doctrines and practices can be construed as “religious” and competencies and duties arising from this identification; and the relationship between majority and minority religious traditions in history and culture. Contrary to the dictates of international law, the vast majority of competing visions of religious freedom in the domestic sphere are united by their emphasis on the determination of religion as religion….

While the disconnect between international and local conceptions of religious freedom is well known and has been decisive to the development of the “margin of appreciation” doctrine of the European Court of Human Rights, the exchange at the PluRel blog displays a number of different positions on how this disconnect can and should be interpreted. Winnifred Sullivan observes in her inaugural post that US law is “…constantly bumping up against the unstable collection of social facts that have come to be assembled under the word “religion,”” and that for this reason, we should “find some other words.”. At the other end of the spectrum, Marc O. DeGirolami observes that US legal actors believe that religion is a “special cultural phenomenon,” the definition of which should be based on analogies to “historical and culturally contingent settlements,” rather than findings from the “academic study of religion.”

Sullivan and DeGirolami prescribe solutions that display very different views of the power of law, but share a basic conviction that social practices that can fall under the rubric of religion are worthy of legal protection or non-interference. Where Sullivan suggests that law is unable to grant this form of protection due to its preference for certain majority traditions over lived religious practice, DeGirolami seems to consider this preference part of the culturally contingent settlements on which law relies, a preference that cannot be unsettled by the findings of academics. Although one would expect a cultural affinity between US and international law on religious freedom in their shared preference for Protestant conceptions of religion, neither Sullivan nor DeGirolami address the international legal framework, demonstrating the splendid isolation of US legislation and jurisprudence on this issue. This isolation is a common feature of US law, which has a longstanding tradition of ignoring international law. Additionally, the turning point of the non-establishment clause of the US constitutional law on religious freedom is the neutrality of the state, an issue entirely outside the purview of international law.

The United States District Court for the Eastern District of New York has issued a decision holding that the HHS contraception mandate violates the Religious Freedom Restoration Act (see here for a previous post on this case). Certain plaintiffs in the case are Catholic non-profit organizations that qualify for the “accommodation” offered by government. Other plaintiffs are Diocesan–the lead plaintiff is the Roman Catholic Archdiocese of New York–and qualify for the exemption. All plaintiffs are self-insured. The exempted plaintiffs’ claims were dismissed.

The remainder of this post will focus on the non-exempted but “accommodated” plaintiffs (for more on exactly who falls into this group, see Points 2B and 3 in this post), whose claims succeeded. The government’s “accommodation” is to allow non-exempted non-profits to fill out a self-certification indicating that they have religious objections to providing the objected-to products to their employees. In the case of self-insured, non-exempted non-profits (such as these plaintiffs) the government demands that such organizations notify a third-party administrator (TPA) of their self-certification, at which time this TPA assumes the obligation of providing the objected-to products to the employees (there is an important wrinkle here that I will note at the end of this post).

In granting the plaintiffs’ motion for summary judgment, the court first held that plaintiffs satisfied the substantial burden prong of the RFRA test. In so holding, it applied a “substantial pressure” standard to evaluate whether plaintiffs suffered a “substantial burden”: “Rather than whether the pressure is indirect or direct, it seems that the more important distinction for the case at bar is between government action that pressures an individual to act inconsistently with his beliefs, and government action that discourages a plaintiff from acting consistently with those beliefs.” The court held that the self-certification requirement imposed by the “accommodation” on non-exempted non-profits was a substantial burden and rejected the government’s proposed test that a court should evaluate whether the burden was “de minimis” or should evaluate whether the self-certification is “too attenuated” to constitute a substantial burden.

The court also found that the government had not provided a compelling interest in mandating contraception coverage in the fashion it has selected. The government offered “the promotion of public health, and ensuring that women have equal access to health-care services” as its compelling interests. Though the court accepted these interests as important in the abstract, it rejected the government’s claim that granting exemptions to these plaintiffs would undermine the government’s ability to administer its regulation so as to achieve its aims uniformly.

Critically, it distinguished United States v. Lee–a case rejecting an Amish plaintiff’s request for exemption from paying taxes into Social Security–on the ground that the whole contraceptive mandate system would not collapse if exemptions were granted in these cases and the government’s application of the mandate is not uniform. Lee is a case on which proponents of the mandate have been placing great emphasis, but the death spiral dynamics at issue in Lee do not seem present here, in large part because of the government’s own exemptions. Here is the key language from the decision: