RFRA and contractual obligations

[tom berg]

I would support a rule that says contracting parties or
institutions cannot break a contract on the ground that
it significantly burdens their religious exercise under
RFRA or the free exercise clause.  I can think of
one major exception (mentioned below), and maybe there
are others, but this seems definitely the right general
rule, for several reasons.

In many cases, the contractual provision will reflect a
knowing waiver of any religious objections to its
enforcement; free exercise, like other rights, can be
waived.  (That may not be the case here, because it
sounds like the hospital's obligation to pay for birth
control might have been inferred from a fairly general
provision; perhaps courts should avoid interpreting
ambiguous contract language in a way that severely burdens
a party's religion.)  More broadly, though, holding
religious people and institutions to their voluntary
agreements generally comports with the overarching
principles of voluntarism and autonomy that I think should
govern church-state law.  Moreover, I think RFRA and the
free exercise clause should generally be read to preserve
government's authority to prevent interference with the
basic common-law rights of others who have not consented
to such interference (what Madison called "private
rights").  Along with basic property rights and tort
actions, this admittedly fuzzy principle would certainly
preserve the doctrine of contractual obligation.

The strength of the principle that religious
organizations must adhere to their contracts is shown in
the cases involving discipline or dismissal of a
minister.  Usually in such cases, virtually all of the
minister's causes of action fail as a matter of law on
the ground that they interfere with religious
institutional autonomy -- except for causes of action
based on contract (the church didn't afford me the
procedures set forth in its documents, or it promised to
put me in such and such a parish and didn't do so, etc.).
The major exception is that courts generally will not
interpret religious terms in a contract -- when faced
with such terms, they tend to move to the other track of
analysis, which is to decide who has the decisionmaking
authority in the religious body and defer to whatever
position that person or entity has taken.

-- Tom Berg, Cumberland Law School, Samford University



On Mon, 28 Apr 1997 18:25:44 PST Eugene Volokh
<VOLOKH at LAW.UCLA.EDU> wrote:


>     Not a weird hypo!  From Milwaukee J & Sentinel, Apr. 26, 1997,
> 1997 WL 4790163, at 3 (note also a different issue raised by the last
> paragraph):
>
>     "Arguing that it can't be forced to provide benefits that violate
> church teachings, St. Francis Hospital is appealing [to a federal
> trial judge] a state arbitrator's ruling that the Roman Catholic
> institution's employee health insurance must continue to cover birth
> control for nurses.
>
>     ". . .  State arbitrator Herman Torosian ruled that the hospital
> could not cancel family planning benefits provided under a
> contract with Local 5001 of the Federation of Nurses and
> Healthcare Professionals. . . .
>
>     "In November 1994, the National Conference of Catholic Bishops
> issued mandatory directives, including the provision that
> `employees of a Catholic healthcare institution must respect and
> uphold the religious mission of the institution.'
>
>     "According to Betsy Zera, the hospital's marketing director, in
> October 1995, administrators discovered contract language that
> `inadvertently' allowed nurses to receive family planning services.
>
>     "On Jan. 1, 1996, Zera said, the language was changed by hospital
> officials to exclude `any procedures in violation of Catholic
> directives and teaching.'
>
>     "The union contends that the change violated the nurses' contract
> . . . .  [F]amily planning had been covered by health insurance under
> the nurses' contracts for eight years before they were canceled
> unilaterally.  `All we're asking is that they live by the contract
> they already had negotiated,' [a union representative] said. . . .
>
>     "In a related development, the California Association of Catholic
> Hospitals is seeking to amend a California bill to exempt all
> Catholic organizations from the proposal to require prescription
> benefit plans to cover contraceptives. . . ."
>
>                                -- Eugene Volokh, UCLA Law

----------------------
tom berg
tcberg at samford.edu