I hate slippery slopes. When I competed in moot court in law school, we learned that the slippery slope argument should, if it can, be avoided; it certainly should never be the first resort. Slippery-slope arguments aren't always invalid, they're just rarely the best approach to articulating a reasonable opposition to a particular law or public policy.
Yet it's important to remember that Supreme Court cases (and other appellate rulings) create precedent; they create rules of law that will apply not only to the litigants themselves but to everyone similarly situated in the future. When I was still teaching high school English I found myself explaining this to students and parents far more often than I might have liked. If I give you the outcome you want, I had to explain, I have to do the same for every student who commits the same offense or omission in the future, and I'm not prepared to do that, absent extraordinary circumstances that warrant an exception to the rule.
The case of Hobby Lobby v. Sebelius bothers me for several reasons. I'm not going to discuss all of them here. Mainly, I just don't like the idea of people, be they employers or public officials, enforcing their religions or their "beliefs," and make no mistake, what Hobby Lobby and its owners are doing (or attempting to do) is not the "practice" or "exercise," but the enforcement of their religion. "Religious liberty" means one is free to practice, believe, and obey the tenets of one's church/faith/sect/&c., not to enforce them, neither publicly nor privately. I could go on, but it would distract from my current purpose.
Speaking of moot court, the topic for my last competition was whether RLUIPA, the Religious Land Use and Institutionalized Persons Act, an offshoot of RFRA (the Religious Freedom Restoration Act) that was passed after the latter was found unconstitutional for being too broad, was unconstitutional. The main argument against RLUIPA was that it essentially created a blanket exemption for churches and religious organizations from any and all local zoning laws, and conferred upon them a presumptive right to build whatever they wanted, wherever they wanted. It gives them the right, quite literally, to make a federal case out of any adverse decision of any local zoning board.
The legal and constitutional issues in the Hobby Lobby case and its brethren are not quite the same, since it's not the statute (RFRA or RLUIPA) that creates the special right for religious actors that is under attack. Rather, the Department of Health and Human Services' regulation (promulgated under authority granted to the Secretary by the Affordable Care Act) that requires employer-provided health insurance policies to include contraception coverage without copays is accused of violating both RFRA and the Free Exercise Clause of the First Amendment.
My initial thought about these cases, based on my study, knowledge and understanding of religion-related jurisprudence, is that the thing which Hobby Lobby's proprietors object to, the thing they're being "forced" to do (to use their own grotesque self-pitying victimization language), is far too attenuated to constitute a substantial burden on their own religious beliefs, or their own religious practice. Nothing about the regulation requires them to use birth control themselves, or to stop believing that it's wrong. They're not using it, the employees are; they're not dispensing it, the physicians are; they're not purchasing it, the insurers are. The insurance policy is part of the employee's compensation; it belongs to the employee, not the employer.
But I'm getting off track again. Here's the question for today:
Is there any way that the Supreme Court can rule in Hobby Lobby's favor, without creating a presumptive "religious" exemption for any and all employers from any and all labor and employment laws and regulations?
"Religious beliefs," and the degree of sincerity with which they are held, are neither verifiable nor falsifiable. No matter what we think of what Hobby Lobby and others are doing, we have to give them the benefit of the doubt that their "religious beliefs" are genuine and that they are "sincerely held." We can't start parsing whether the "belief" at issue is that "birth control is wrong," or that "I am forbidden by my church/my faith/my deity from providing the employees of a business that I own with medical-insurance policies that include coverage for contraceptive devices, medications and/or procedures at full cost with no patient co-payments." Where the latter can be found in The Bible or any other religious text is anyone's guess, but we can't make that the issue.
What neither a court nor an administrative agency can do is evaluate "religious beliefs" such that certain beliefs are worthy of an exception to a rule or an exemption from the law and others are not. They cannot evaluate the legitimacy of certain beliefs or of certain religions; it can't treat one as any more or less important than another. The Supreme Court in Hobby Lobby therefore cannot issue a specific, narrow ruling that an objection to contraception based on "sincerely-held religious beliefs" constitutes a "substantial burden" and warrants an exemption from the coverage requirement, but religious objections to other things don't warrant exemptions from other kinds of regulations.
In other words, if Hobby Lobby wins, the Court will have to create a rule of law that reads something like this:
If an employer objects to [X] based on his sincerely-held religious beliefs, he shall be presumptively exempt from laws requiring [X].
I'm trying to think of how else the Court can do it, viz., how the Court can hand Hobby Lobby a victory and exempt it and other businesses from the contraception-coverage requirement, without allowing essentially any business to exempt itself from any law or regulation by stating an objection to that law or regulation based on "sincerely-held religious beliefs."
Now, then, for some deeply stupid slippery-slope analogies:
Could an employer claim that putting out fires, and hence the use of fire extinguishers, sprinklers and smoke detectors, is against his religion, and exempt himself from fire safety regulations?
Could an employer claim that his religion requires him to employ children, and be exempt from child-labor laws?
Could an employer claim that sanitation is against his religion, and be exempt from environmental regulations?
Yes, these are stupid, but why? What's the difference between refusing to equip your employees' workplace with safety devices that violate your religious beliefs, and refusing to provide your employees with medical-insurance policies that violate your religious beliefs? Can that question be answered without resorting to an evaluation of which particular religious beliefs are genuine and legitimate (e.g., without pointing out that there's no actual religion that forbids its adherents from practicing fire safety)?
How can the Supreme Court rule in Hobby Lobby's favor without creating an opportunity for an employer to refuse to provide fire-safety equipment by claiming that putting out fires is against his religion? (Or without creating a test of how to determine whether a "religious belief" is genuine, legitimate, or how "sincerely" it is "held"?) It's not enough to simply say that no one would ever do that, or brush it off because no such "religious belief" exists in any "recognized" religion. As I've said previously, the law is not in the business of differentiating and categorizing religious beliefs, of establishing which religious beliefs are worthy of exemptions from the law and which are not.
If an employer declares that putting out fires is against his religion, refuses to install fire extinguishers, smoke detectors and sprinklers in his employees' workplace, is issued a citation and sues the municipality, using the Hobby Lobby case as precedent to claim a religious exemption from fire-safety regulations, what principle will distinguish his case from the Hobby Lobby case and require a different outcome? How can the Supreme Court fashion a rule that would exempt Hobby Lobby from the contraception-coverage requirement but would not exempt our hypothetical company from fire-safety regulations?
The only thing I can think of is that refusing to provide fire-safety equipment puts one's employees in potentially serious and potentially immediate physical danger, whereas refusing to provide medical-insurance policies that include contraception coverage does not. But that may not be entirely true, depending on how you look at it. And how an employee might go about avoiding the need for contraception or providing it on her own, versus how an employee might go about avoiding the need for fire-safety equipment, is not really relevant. The employer is seeking an exemption based on his "religious beliefs," not his unilateral subjective assessment of whether his employees "need" whatever it is the law requires him to provide.
Meaning, the degree to which employees "need" the benefit can't be a determining factor, can't be part of the rule that comes out of the Hobby Lobby case. The Court is not going to declare that "employers with religious objections are exempt from having to provide a legal benefit, so long as their employees don't need it that badly." Future courts would have to weigh the employee's "need" for the benefit against the importance of the religious belief to the employer. They're not going to do that. Besides, the need for the benefit is established by the mere existence of the legislation that created it. A court can't usurp the legislature by declaring that citizens don't "need" this benefit badly enough to overcome their employers' "religious" objection to providing it.
So, the question remains: How can Hobby Lobby win without effectively nullifying any and every labor and employment-related law and regulation on the books?