Administrative agencies wield enormous power over many aspects of life in America. It is no surprise, then, that agency actions can often have a significant impact on the free exercise of religion.
Government power wielded by agency bureaucrats is subject to the same constitutional and statutory civil rights laws that apply when government power is wielded by elected officials. Properly applied, these laws ensure our Nation’s historic commitment to a live-and-let-live approach to religious diversity, in which the government should seek to avoid unnecessarily forcing someone to violate their religion.
But there are two key aspects of agencies that make religious freedom conflicts they create different from conflicts created by legislatures.
First, bureaucrats tend to be specialists, often with a somewhat single-minded focus on pursuing an important but fairly narrow task, such as regulating securities, improving healthcare, or enforcing equality norms in employment. This makes bureaucrats different from elected officials, who by definition tend to be generalists who need to focus on a wider range of goals and interests in order to win elections and pass legislation. The comparatively single-minded focus of bureaucrats risks making agencies more likely than legislatures to overlook, ignore, or discount competing values, such as religious liberty.
Second, because this single-minded agency power is further removed from the electorate, governments sometimes use agency power to try to achieve goals that cannot command anything like majority support. We saw two examples of this during the Obama Administration, where the government insisted that the Little Sisters of the Poor had to provide their employees with insurance for abortion-inducing drugs and devices, and when it insisted that religious hospitals need to provide sex change operations and abortions or be guilty of sex discrimination under Title IX. These agency actions created religious liberty conflicts that legislative majorities in Congress had never come close to imposing. And they resulted in massive nationwide litigation, multiple Supreme Court decisions, and years of unnecessary culture war fighting. These episodes were entirely avoidable, and they were bad for the country.
But all is not lost. The growth of the administrative state brings with it one benefit for religious freedom. Under the Constitution and civil rights laws such as RFRA, governments are only permitted to burden religious liberty where it is necessary to achieve a compelling governmental interest that cannot be achieved some other way. The sheer size and scope of the modern administrative state means that governments will almost always be able to achieve their goals without forcing violations of religious liberty. To take the most obvious example, the massive federal involvement in healthcare—from programs like Medicare and Medicaid, to the Obamacare exchanges, to Title X funding for contraceptives—means that the government can of course make contraceptives widely available without the forced involvement of Catholic nuns. The Obama Administration eventually admitted this to the Supreme Court, dooming the contraceptive mandate and ensuring that no matter who won the presidency, the mandate could not survive.
In this respect, the administrative state may be said to be both a curse and a blessing to religious liberty.
As part of the 2017 National Lawyers Convention, the Federalist Society’s Religious Liberties Practice Group will host a panel discussion titled The Administrative State and Religious Freedom to discuss whether the administrative state places religious freedom in too precarious a position, and if so, what can and should be done about it.
The discussion will feature yours truly as well as the following distinguished scholars:
- Prof. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
- Mr. Mark L. Rienzi, Senior Counsel, The Becket Fund for Religious Liberty and Professor of Law, Columbus School of Law, The Catholic University of America
- Ms. Melissa Rogers, Nonresident Senior Fellow in Governance Studies, The Brookings Institute
- Mr. Roger Severino, Director, Office for Civil Rights, United States Department of Health and Human Services
- Moderator: Hon. Diarmuid O'Scannlain, United States Court of Appeals, Ninth Circuit
Who will be required to provide contraceptive coverage; how will religious accommodations be extended, and to whom? Must bakers and photographers with religious objections service gay weddings? Must doctors perform surgeries on patients that violate their faith and medical judgment? Join the panel on Thursday, November 16 from 3:30 – 5:00 PM in the East and State Rooms of The Mayflower Hotel to engage these questions and more as the National Lawyers Convention pursues its theme of Administrative Agencies and the Regulatory State.