When the Supreme Court handed down its ruling yesterday in the Hobby Lobby case, there were some initial media reports that incorrectly stated that the Court had issued a ruling under the Free Exercise Clause of the First Amendment. In reality, of course, the Court’s ruling was based on the Religious Freedom Restoration Act, a 1993 law passed by a near unanimous Congress that was controlled by Democrats, and signed into law by President Clinton. The law was promoted by the Supreme Court’s ruling in Employment Division v. Smith in which the Court rejected a religious liberty claim by Native Americans that a decision to deny them unemployment benefits when they were fired for failing a drug test that came back positive of peyote, which is used in their tribe’s religious rituals. In essence, the Court ruled that the First Amendment does not give Americans an exemption from generally applicable laws merely because that law conflicts with their religious beliefs, or criminalizes activity that is part of their religious faith. Many mainstream religious groups reacted negatively to the ruling, fearing that it could lead to a whole host of situations where pastors and parishioners would be punished for following their faith. The RFRA was passed in response to the ruling, and although its applicability to the states was struck down, the courts have generally accepted the fact that the law is Constitutional.
Today, at The Volokh Conspiracy Sasha Volokh raises the question of whether or not that is actually the case:
Justice Stevens is the only one who ever showed any sympathy for the argument that RFRA violates the Establishment Clause, in his concurrence in City of Boerne v. Flores.Nonetheless, Justice Stevens may have been right as a philosophical matter, so let me reproduce the entirety of his concurrence here:
In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.
If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v.Jaffree, 472 U.S. 38, 52-55 (1985).
The unconstitutionality of RFRA has also been a theme of Marci Hamilton’s work; she also submitted an amicus brief in the Hobby Lobbycase arguing that RFRA was unconstitutional. She has four theories: (1) RFRA violates the separation of powers, (2) RFRA violates Article V, (3) RFRA isn’t justified by any of Congress’s powers, and (4) RFRA violates the Establishment Clause. I disagree with (1) through (3), but am sympathetic to (4).
I have embedded Hamilton’s amicus brief below, and rather than reproducing her argument in full, I will just recommend the reader to consult it on their own. At 34 pages it is relatively short and fairly easy for even non-lawyers to understand.
Looking at the matter more generally, I have to say that I largely agree with Volokh in that I have long been troubled by the idea of the RFRA, and that we may be seeing some of the reasons that it is problematic in cases such as Hobby Lobby and the cases that are likely to follow it. In the abstract, I suppose, there is something to be said for the idea that there ought to be at least some kind of religious exemption to laws in situations where a person potentially faces punishment for actions that are a part of their religious faith. The peyote example in Smith is one such situation; a Native American who uses peyote as part of a religious ceremony should probably not be punished because of that. Another example would apply to Christian churches, most especially the Catholic Church, who use wine in their religious ceremonies. In the era of Prohibition, this would have been a violation of the law but for the fact that the applicable laws generally exempted religious uses from the laws banning alcohol. Ideally, there would be exemptions in the law to cover these situations but, as Mr. Smith learned in the case that bears his name, that isn’t always the case. While the Court in that case was largely correct in its holding that religion cannot be an excuse for failing to comply with a generally applicable law. However, what happened to Smith does seem like something of an unjust situation, and that, along with the concerns raised by religious leaders, was the motivation behind the RFRA.
While most of the criticism about Hobby Lobby has focused on the fact that the Court held that a closely held corporation can assert claims under the RFRA, it strikes me that many critics are missing the real problem with the Courts ruling. Essentially, I am referring to the fact that the Court found that the Greens assertion that providing coverage for certain, but not all, forms of birth control under their company’s health care plan would be a violation of their religious beliefs constituted the substantial burden that the statute requires. The dissents in the case barely contest this finding, and my own reading of the RFRA suggests that the Court was entirely correct to find that the statute applied in this situation. But, that’s the problem. If paying whatever extra it may have cost to cover a few birth control drugs is considered part of religious belief under the law — and again, there is nothing in the RFRA or supporting case law that says it shouldn’t be — then what couldn’t be considered an exercise of religious belief. The most obvious implications for this type of argument, it seems to me, will come not in cases of other employers wanting to use religion to micromanage health insurance plans but in the cases that have been popping up recently involving vendors who do not wish to provide services to same-sex weddings based on religious objections. If an objection to paying a little extra for birth control coverage is a valid claim under the RFRA to bar applicability of that part of the employer mandate, then why wouldn’t religious objections to same-sex marriage be a valid RFRA bar to an otherwise generally applicable law barring discrimination based on sexual orientation? As a matter of law, I think it would be hard to distinguish the two. As a policy matter, though, I have to wonder if we want to start saying that religious beliefs are a valid reason to discriminate against someone in a manner otherwise barred by law. But, that would seem to be exactly the outcome that the RFRA would mandate.
While the motivation behind the RFRA is well intentioned, it strikes me that Justice Stevens has a point in the concurrence that is quoted above. In the end, when Congress passed a law giving a special exemption from generally applicable laws to people based on their religious beliefs, it gave to the person of faith something that nobody who is not a person of faith can ever have. The atheist or agnostic doesn’t get an exemption from any law that they might have a strongly felt philosophical objection to, for example, and neither does someone of a different faith who must still comply with that same generally applicable law. To use the Hobby Lobby example, owners of closely held companies that do not have a religious objection to certain forms of birth control don’t get the same benefit does, nor do they get to make a claim that they have a general philosophical objection to the idea of the government requiring them to provide health insurance to employees and dictating the terms of those policies. Congress, through the RFRA has created a protected area of thought — religious thought — that gets special protection under the law. That, quite arguably, is an establishment of religion in violation of the First Amendment to the Constitution.
Notwithstanding the fact that Hamilton raised this issue in the brief filed in Hobby Lobby, the Court does not give attention to her argument at all in its opinion. Given the fact that the RFRA has been around for twenty years now and has made it through the Supreme Court several times without any serious challenge other than the Court’s determination that Congress could not apply the law to the states, it seems unlikely that the RFRA will be struck down at this point absent a truly compelling argument combined with the right set of facts. It seems even less likely that Congress would ever repeal the law. So, it would seem that we are stuck with it at this point. Eventually, though, I’m wondering if we’re going to come to think that the 103rd Congress may have made a mistake when it passed this law even if it had good intentions when doing so.
Here is Hamilton’s Amicus Brief:
