Edwin Lee was a Pennsylvania Amish farmer and carpenter. God smiled on his labors, and he hired fellow Amish to work on his farm and in his shop. Naturally he paid them—after all, Scripture tells us that the laborer is worthy of his hire. But beginning in 1970, Lee refused to pay the Social Security payroll tax on his workers' wages the government said he owed. Amish do not believe in social insurance, based on language in Paul’s First Letter to Timothy: “If any provide not for his own, and specially for those of his own house, he hath denied the faith, and is worse than an infidel.”
The Internal Revenue Service took a different view, and in 1981 Lee’s case ended up in front of the United States Supreme Court.
If the current Court concerns itself with precedent (which I have come to doubt), United States v. Lee should play a large role in the deliberations over Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius—the cases, to be argued March 25, that will decide whether for-profit corporations can exempt themselves on religious grounds from the contraceptive-coverage requirements of the Affordable Care Act.
That’s because the Court decided that the requirement that making Lee pay payroll tax for his workers was a “burden” on his rights under the Free Exercise Clause of the First Amendment—in fact, that paying the tax was “forbidden by the Amish faith,” and that mandatory payment “interferes with their free exercise rights.” (Congress had tried to accommodate the Amish by providing in the statute that self-employed Amish did not have to pay Social Security tax, but Lee and other Amish also wanted an exemption from paying taxes on workers they hired.)
Having found a burden on Lee’s free exercise, the Court then went on to hold unanimously that “the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the law.” In addition, exempting objectors from paying employees’ payroll tax would “impose the employer's religious faith on the employees.”
In other words, the Court acknowledged that Lee had a sincere belief and the tax made him violate it. But he still lost because the government had what we’d call today a “compelling interest” in the Social Security system. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court’s unanimous opinion said, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.”
For those who sympathize with Lee—and I do—his story has a happy ending. Passed in 1994, 26 U.S.C.A. § 3127 changed the Social Security laws to exempt any employer or partnership consisting of members of any “recognized religious sect” that is “conscientiously opposed to acceptance of the benefits of any private or public insurance” from paying payroll taxes for any employee “who is also a member of such a sect.” In other words, Congress did what a legislature can do and a court can’t—it rewrote the statute to cover the narrow case where the system could accommodate the beliefs of both employers and employees without threatening the overall program.
Hobby Lobby and the other challengers to the employee-insurance mandate do not want to comply with a general regulation of what is unquestionably interstate commerce—employee compensation and health insurance. In their brief filed February 10, they argue that “the mandate compels Respondents to do precisely what their religion prohibits or face draconian consequences.” This is almost precisely the same claim as the one raised by Edwin Lee. If the Court is faithful to precedent, the government’s interest in uniform enforcement of its health-care plan—and in protecting the consciences of employees—will trump that belief.
There is a distinction between the two cases, of course: Lee arose under the Free Exercise Clause. The current cases concern the Religious Freedom Restoration Act, which was passed in 1993, well after Lee, and was intended to be more protective of free exercise rights than the Constitution. But that is, as lawyers say, a distinction without a difference: RFRA was passed because, in 1990, the Court lowered the standard for Free Exercise Claims. The standard RFRA intended to restore is precisely the standard the Court applied in Lee—that is, a balance of the burden on free exercise v. the “compelling interest” of the government. As far as Social Security goes, the Burger Court applied what is now the RFRA standard and rejected it unanimously.
So to uphold the Hobby Lobby claims, the Court’s majority will have to find its way around Lee. There are two ways they could do that, both of them bad.
Let’s start, though, with the argument most people have focused on during the run-up to the contraceptive-mandate cases—that being for-profit corporations, the challengers cannot assert a “free exercise” claim at all. It’s a strong argument, but one that takes more subtlety to assert than most published comments seem to display.
That’s because it is routine to say that free exercise is an individual right, and that “corporations are not people.” But in this context, the argument is flawed at the outset. Free exercise is actually primarily a group right, extended to religious bodies, in corporate form or other wise. The term “free exercise” in fact originally referred to a right held only by groups. It dates back at least to the 17th Century, and is defined by the Oxford English Dictionary as “the right or permission to celebrate the observances (of a religion)”—that is, a privilege granted by monarchs to specific faiths to hold their services in public.
Religion, Emile Durkheim wrote, is primarily a set of “beliefs and practices which unite into one single moral community called a Church, all those who adhere to them.” Most religious “exercise” can’t be done alone. One of the earliest—and most embarrassing—cases brought under the Free Exercise Clause was entitled Late Corporation of the Presiding Bishop v. United States, which upheld an Act of Congress dissolving the Mormon Church and seizing all its property ($3,000,000 in 1887 dollars). The Mormons argued that punishing their church for polygamous beliefs violated the First Amendment, but the Court ridiculed the idea. “No doubt the Thugs of India imagined that their belief in the right of assassination was a religious belief,” the justices briskly reasoned, “but their thinking so did not make it so.”
Can anyone imagine this case coming out the same way in 2014, on the grounds that a corporation has no religious rights? Or that the Jehovah’s Witnesses’ parent company, The Watchtower Bible & Tract Society of Pennsylvania, Inc., has no rights except the individual rights of its members?
The important distinction here, of course, is that Hobby Lobby and the other challengers are for-profit corporations. The Mormon Church, like a lot of religious bodies, is a religious corporation. And despite the disinformation floating around about the Little Sisters of the Poor case, religious corporations have a very firm exemption to the contraceptive mandate. Would the Court want to rewrite the statute—and possibly make corporate law into a teeming mess of exemptions and inquisitions?
There’s a way out, of course; and that is to rely on precedents like Lee and say that the “for profit issue” doesn’t need to be decided, because in any case the government’s interest in uniform application of the mandate trumps whatever burden it may place on any secular employer, corporation or not. If Congress disagrees, it knows how to write a limited exemption to the mandate, the way it did for Edwin Lee. That would be the best all around; the Tenth Circuit opinion upholding Hobby Lobby’s claims is such a wretched piece of work that a sane justice might not want to touch it, much less affirm it.
There are only two distinctions I can think of between the Lee precedent and the contraceptive-mandate case, and either one of them would be unprincipled. The Court could now decide without quite saying so that the Affordable Care Act is a kind of “political” program, not entitled to the same uniformity and respect as Social Security. There is no basis for a court to sort congressional statutes into those it respects and those it doesn’t; but the Court’s conservatives endlessly spout their hatred for government of any kind. It’s possible that they, like many outside the Court, hate the ACA and regard it as a North Korea–style tyranny. That general philosophy might underlie a decision that would, as everyone knows, help sabotage it.
The other is even worse. One bedrock principle of religious-freedom law is that courts don’t—can’t—decide the validity of any given religious belief, whether it is in the sanctity of the Confessional or the ministry of Jesus to North America following the Resurrection. But hovering over this whole debate is a barely concealed sense among many that contraception—indeed, any control by women of their own fertility—is a special constitutional area, that it is in some way questionable in a way that taxes and pensions and other benefits are not. This Court might write that prejudice into the Constitution, implicitly holding that as a matter of law contraceptive rights are suspect, and can be abridged more easily than others.
That, to say the least, would be a dreadful mistake.