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By Richard Swartz, SSDS ERISA Partner

In its 2014 Burwell v. Hobby Lobby decision, the Supreme Court found that the Religious Freedom Restoration Act (RFRA) precluded the federal government from requiring, in the Affordable Care Act, that contraceptives be covered under group health plans for employees of closely-held corporations, if the owners of the corporation had a sincere religious objection to the corporation’s employees receiving financial assistance with contraception from or through the corporation. Justice Ginsberg’s dissent in Hobby Lobby contained many warnings, including a parade of religious objections to Affordable Care Act health plan coverage requirements other than for contraceptives:

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?

Last week, this parade began in the Northern District of Texas, with Braidwood Management v. Becerra. The Affordable Care Act’s preventive care requirements direct group health plans to cover pre-exposure prophylaxis (PrEP) medications, which reduce the risk of contracting HIV, particularly from sex or injection drug use. The religious owner of Braidwood Management objected to providing coverage for PrEP drugs because he believes that (1) the Bible is "the authoritative and inerrant word of God," (2) the "Bible condemns sexual activity outside marriage between one man and one woman, including homosexual conduct," (3) providing coverage of PrEP drugs "facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman," and (4) providing coverage of PrEP drugs in Braidwood's self-insured plan would make him complicit in those behaviors.

The Court granted summary judgment to the believing plaintiff under RFRA, because the requirement to cover PrEP medications interfered with the exercise of the business owner’s religious beliefs in violation of RFRA. In doing so, the Court disregarded the Department of Labor’s argument that the effect of PrEP medications on sexual behavior and drug use is a matter of objective fact, not proven by the objecting plaintiff, because the government “must accept the sincerely held complicity-based objections of religious entities.” Therefore, the government may not “tell the plaintiffs that their beliefs are flawed because, in the Departments’ view, the connection between what the objecting parties must do and the end that they find to be morally wrong is simply too attenuated.” RFRA, as interpreted by Hobby Lobby and applied in Braidwood, requires courts to hear religious challenges to laws of general applicability while depriving judges of the ability to employ any common-sense distinctions between core religious or moral convictions and the tendentious beliefs most commonly associated with discrimination, or even hatred.

In facets of employment other than health coverage, Bostock v. Clayton County teaches that the religious beliefs vindicated in Braidwood are unlawful sex discrimination if practiced against employees: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” However, Bostock itself comes with a warning: “RFRA… might supersede Title VII’s commands in appropriate cases….[H]ow these doctrines protecting religious liberty interact with Title VII are questions for future cases too.” Even if the result of Braidwood is in tension with Bostock, it appears that employee rights created through federal legislation of any kind may be vulnerable to RFRA attack, even though exercise of the employer’s religious belief would otherwise be unlawful.

Given the Supreme Court’s rulings in Hobby Lobby and the cases that have followed, Braidwood should probably not be considered surprising, even if the judicial approval of discrimination is shocking. Those involved in the labor movement should keep in mind that representation and collective bargaining may afford employees who are threatened with religious abridgment of their rights with greater ability to stand their ground.

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