Way back in law school, when I first had to participate in a mock trial, our case involved the commercial law issue of the “Battle of the Forms.” A seller of widgets issues a standard form for selling them; a buyer of widgets has a standard form for ordering them. Neither party ever signs the other’s form, but the widgets are actually delivered and paid for. Whose form controls, if they conflict on matters like the length of the warranty period? I think my side won, but it’s entirely possible that my memories are growing more convenient with age.
Now there is another real life Battle of the Forms taking place in the federal courts. The issue involved is as meaningless as that of a law school mock trial, but the fact that it’s happening at all is a sad commentary on the deference our government pays to the God industry.
The Affordable Care Act generally requires employers over a certain size either to provide minimum healthcare benefits (including contraception) to their employees, or pay a tax. The Obama administration decided voluntarily, even before last spring’s Hobby Lobby case was decided, that religious employers could provide minimum benefits that exclude contraception and not have to pay the tax, if that’s what God tells them to do. Contraception would still have to be made available to employees of these organizations by the health insurance company or third-party administrator, with the costs being paid by the taxpayers or other ratepayers.
To carry out this law, the government needs all employers to report on whether they are providing a plan that includes the minimum benefits, or whether they are choosing to pay the tax. The prima donnas who do neither need to be identified, so that the government can arrange to transfer my money and that of other ratepayers and taxpayers to their employees. To do this, the government developed a simple form for any religious organization to fill out, to put itself above the law that applies to everyone else.
No one enjoys filling out government forms, but those that simply ask for your name, address, signature, and date are pretty painless. Not so for those with a political axe to grind, though. Organizations intent on resisting the very idea of contraception every way they possibly can have decided that filling out such a form makes them somehow “complicit in evil,” so they refuse to do so.
“No problem,” says the government. If you don’t like the form, you can make up your own. Just send the government a letter saying in your own words that you have religious objection to paying for minimum healthcare benefits for your employees, and you’re off the hook—the government will make me pay for them instead.
That’s still too much for the die-hards. In their brief to the Tenth Circuit Court of Appeals, they say that it’s not enough that filling out the form doesn’t, in any way, actually “condone” the use of contraceptives. No, they must “avoid even appearing to condone wrongdoing.” Even if they make up their own form, as they are allowed to do, saying “We don’t condone contraceptive use at all, and we think anyone who uses or pays for contraceptives deserves to be tortured in hell forever,” they say that “appears to condone” wrongdoing.
This case, like Hobby Lobby, is not brought under the Constitution, but under the Religious Freedom Restoration Act (RFRA). That’s the law—actually, more of an anti-law—that allows people to ignore any other law they choose, just by claiming it conflicts with their religious belief. The only way the government can enforce any law against anyone who chooses to hide behind RFRA is to prove both that the government has a “compelling interest” in enforcing that particular law, and that it has chosen the “least restrictive means” of making the religious objector comply with that interest.
At last month’s oral argument, Judge Bobby Baldock reportedly questioned both parts of the RFRA test as they apply to this particular Battle of the Forms. He had trouble understanding why the government really needs the form and even more trouble understanding why the plaintiffs object to it. As Baldock put it, the form simply tells the government, “You can go pound sand because we don’t condone it, we don’t agree with it.”
Those questions perplex me as well. But the bigger question, which Judge Baldock isn’t going to answer, is why we have courts wasting time on RFRA in the first place. If you don’t think health plans should cover contraception, then try to persuade your elected representatives to change the law. If you win, you win; if you don’t, then comply. That’s the only way society can function fairly—with one set of rules that applies to everyone.
Here’s an example the RFRA advocates need to consider. There are perfectly constitutional laws in thirty-five states restricting a doctor’s unfettered right to perform abortions by requiring that women be given certain materials allowing them to provide “informed consent” before the procedure begins. The folks at the Satanic Temple have announced that these laws violate their religion, so under RFRA they shouldn’t have to comply with them. The same logic could apply to other restrictions on abortion, such as after a certain duration of pregnancy. Should a doctor who says his religion compels him to ignore these laws and do abortions with no regulation whatsoever be able to do so? Is that the kind of society RFRA advocates really want?