Cutler v. U.S. Dep’t of Health & Human Servs., No. 14-5183 (D.C. Cir. Aug. 14, 2015).
This challenge to Obamacare, unlike many others, does not argue that the Affordable Care Act unconstitutionally discriminates against religion. Instead, it argues that the ACA so favors religion that it violates the Establishment Clause.
The ACA generally requires everybody either to maintain health insurance or to pay a tax penalty. But it carves out an exception for those who are members of certain “recognized religious sect[s] or division[s] thereof” and who have a sincere religious objection to buying medical insurance. To qualify for this exemption, people must waive their right to payments under Social Security and Medicare. Also, the Commissioner of Social Security must find, among other things, that the religious sect in question has a practice of making “provision for [its] dependent members.” This exemption seems designed to accommodate insular religious communities—the Old Order Amish, for example, or perhaps certain Hasidic communities. The exemption, as the D.C. Circuit notes, is also designed to ensure that those who opt out of the ACA for religious reasons won’t shift their healthcare costs to the public fisc.
Here, Plaintiff Jeffrey Cutler wants to opt out of the ACA mandate, but not for religious reasons. He simply has personal objections to the mandate. And he asserts that the religious exemption in the ACA—which, of course, does not encompass him—violates the Establishment Clause.
The D.C. Circuit concludes that Cutler has standing to bring his claim under the Establishment Clause, but rejects that claim on the merits. Religious exemptions, the Supreme Court has concluded, generally don’t violate the Establishment Clause. Plus, the exemption in the ACA is narrowly tailored to accommodate not all religious objections to the mandate, but only those that can be accepted without shifting healthcare costs to the public. And while the exemption does allow some religious objectors and not others to be accommodated, it makes these distinctions (so the D.C. Circuit says) based not “on sectarian lines,” but based merely on “which faiths have a proven track record” of providing for their own.