In 1756, the Rev. Francis Alison, a prominent minister from Pennsylvania, urged people in the colonies of all religious persuasions to join together to help win the French and Indian War. In making a point about conscientious objectors, Alison argued that “[a]ll … should have a free use of their religion, but so as not on that score to burden or oppress others.” Alison’s understanding of religious liberty would be reflected in the Pennsylvania Constitution of 1776, which freed conscientious objectors from having to fight but required them to pay for a substitute.
The story of how conscientious objector laws have safeguarded religious liberty, while also protecting the rights of others—laid out in a brief filed by prominent military historians—should be front and center on Wednesday when the Supreme Court hears Little Sisters v. Pennsylvania and Trump v. Pennsylvania. In those cases, a religiously affiliated employer known as the Little Sisters is urging the Supreme Court to bless the Trump administration’s decision to give employers an unconditional religious exemption from the contraceptive coverage requirements of the Affordable Care Act and declare the ACA’s religious accommodation unlawful.
In 2014, a bitterly divided Supreme Court in Burwell v. Hobby Lobby Stores held that closely held corporations, whose owners had a religious objection to providing contraceptive coverage, were entitled to avail themselves of the religious accommodation contained in the ACA’s regulations. Under the Religious Freedom Restoration Act, such businesses would be entitled to shift the obligation to provide contraceptive coverage to their insurance companies. For the first time in history the Supreme Court held that some business corporations were entitled to religious accommodations, sending the message that owners of companies could invoke their religious beliefs to skirt the law.
The silver lining in the 5–4 ruling was the majority’s recognition that the ACA’s religious accommodation provided the key to taking account of the rights of all parties. The majority concluded that the accommodation is “an alternative that achieves all of the government’s aims while providing greater respect for religious liberty” and guarantees that “women would still be entitled to FDA-approved contraceptives without cost-sharing.” Now, the Little Sisters and the Trump administration are asking the Supreme Court to shelve that part of the Hobby Lobby ruling and strike down the accommodation.
This is not the first time the Supreme Court has been asked to take this step. In 2016, in Zubik v. Burwell, the court heard a set of cases in which employers argued that the accommodation violated RFRA. But an eight-member court failed to resolve the issue. That is unlikely to happen this time around.
In more than two centuries, the Supreme Court has never struck down a religious accommodation on the ground that it substantially burdened the free exercise of religion. The Little Sisters, joined by the Trump administration, is urging the court to take that extreme step for the first time. Even though the ACA’s religious accommodation eliminates any role for the employer in providing contraceptive services and shifts the burden of paying for contraceptive coverage to insurance companies, the Little Sisters argues that the accommodation still tramples on its religious beliefs. In its view, the government may not require it to do anything—even a ministerial task as simple as filling out a piece of paper—if the end result is that even one of its employees could enjoy the access to contraceptive coverage that the ACA requires.
When the Supreme Court hears oral argument on Wednesday—which will be livestreamed for all to hear as part of the court’s social distancing measures taken in response to COVID-19—the questioning is likely to focus on RFRA and the court’s precedent. But the court should not ignore centuries of historical practice that have given meaning to the guarantee of the free exercise of religion.
The sweeping arguments for a total religious exemption are profoundly inconsistent with the history of religious accommodation in this country and the backdrop against which the Framers crafted the First Amendment. Throughout American history, religious accommodations that have allowed objectors to opt out and to transfer their legal duties to others have been a crucial means of respecting religious liberty in a nation of diverse faiths.
From 1776 to the present, conscientious objector laws have exempted those with a religious objection to war from combat, while still requiring them to aid the nation during wartime. What the Little Sisters denounces as a violation of their freedom of conscience is what history shows is a common practice: accommodating religious objectors by shifting their obligations to third parties who do not share that objection.
In 1776, the people of Pennsylvania enacted a new Constitution, which relieved conscientious objectors of the duty to fight but required those opposed to war to “pay such equivalent” in order to find a substitute. The Keystone State was not alone in rejecting an unconditional exemption. In numerous states, conscientious objector laws enacted at the time of the American Revolution and the writing of the Constitution required individuals objecting to participation in military service on religious grounds to pay for a substitute.
Religious accommodations for military service also figured prominently in debates over the Bill of Rights. During debates in Congress over proposals to include a religious exemption from combat in the Second Amendment, members of the First Congress stressed that conscientious objectors had to do their part to ensure the safety of the nation. A religious exemption from combat would be “unjust, unless the constitution secured an equivalent.” Ultimately, the Second Amendment did not contain a religious accommodation, leaving matters to the states. In many states, a conscientious objector had to pay for a substitute.
Since the Civil War, federal draft laws have accommodated individuals with a religious objection to war, requiring them to perform alternative service. Under these laws, an individual who considers war sinful cannot refuse to participate in the war effort entirely. What is more, a conscientious objector cannot stop a draft in its tracks by insisting that calling up the next draftee makes him or her complicit in sin. As Justice Sonia Sotomayor commented during oral argument in Zubik, the logic of the argument for an unconditional exemption would wreak havoc with federal draft laws. Look for her to press this line of questioning again.
Our Constitution and laws place the highest of values on religious liberty, recognizing the right to practice’s one’s religion as critical to freedom, dignity, and self-definition. But the Affordable Care Act has already accommodated the beliefs of those who have a religious objection to contraception. What the Little Sisters wants—to prevent insurance companies from assuming their legal duty—would pervert our cherished constitutional values of religious liberty. It would allow employers to impose their own religious beliefs on their employees and extinguish important federal rights secured by the Affordable Care Act. Women would be left without access to the most effective forms of contraception.
In Little Sisters and other cases on the docket both this term and next, the Supreme Court’s conservative majority is poised to reshape the meaning of religious freedom in America. If the Supreme Court strikes down the ACA’s religious accommodation, it will be casting aside centuries of history. As the history of conscientious objector laws shows, religious accommodations help, not harm, religious liberty. Religious accommodations, like those contained in the Affordable Care Act, ensure, as the Rev. Francis Alison explained more than 250 years ago, that “all should have a free use of their religion, but so as not on that score to burden or oppress others.”