Smith and RFRA and the Bishops’ Claims
A short sketch, for those interested. Or you can go read all the opinions!
Employment Division v. Smith is the central Supreme Court opinion interpreting the First Amendment of the Constitution’s protection of religious liberty. Westlaw summarizes its holding as follows:
Although state would be prohibiting free exercise of religion in violation of free exercise clause if it sought to ban religious acts or abstentions only when they were engaged in for religious reasons, or only because of religious belief that they displayed, right of free exercise does not relieve individual of obligation to comply with valid or neutral law of general applicability on ground that law proscribes, or requires, conduct that is contrary to his religious practice, as long as law does not violate other constitutional protections.
As I said below, the key significance of this case is that it significantly loosened the standard for assessing most constitutional claims of religious liberty cases. That prior test required that government actions that substantially burden a religious practice must be justified by a compelling state interest and narrowly tailored to affect that interest as little as possible. (Sherbert v. Verner). Smith clearly says that legislatures can make exemptions from generally applicable laws for religious practices–I am not sure that it encourages such practices, as some have suggested in my previous thread.
So Smith set the basic framework for FEDERAL CONSTITUTIONAL protection of religious liberty. What about the Religious Freedom Restoration Act, known as RFRA? I honestly don’t see how it can be understood apart from Smith. Why? First, if you read the text of the Act, it’s clear its whole purpose is to “undo” Smith and restore the prior test from Sherbert. That’s the restoration at stake. To the extent that you can’t understand any law without understanding its stated purposes, you can’t understand RFRA as anything but the anti-Smith. (In other words, it is certainly possible that some hypothetical statute can be interpreted as a non-critical supplement to Smith–but not this statute.)
Why does it matter? In my view, for pedagogical reasons. Even if RFRA did restore everything taken away by Smith, Smith, I think, sets too cavalier a tone toward religious liberty questions. Mike Moreland points out, as does the majority in Smith, that the Court has upheld most restrictions on religious liberty even when applying a strict srutiny test. That may be true. But it is not decisive. Practically speaking, lawmakers may decide not to pass laws that they think would clearly fail a strict scrutiny test. Moreover, the pedagogical power of the law is important. Smith‘s message, in my view, is insufficient in its respect for religious freedom.
Although very short, RFRA purports to be very expansive in function–to cover all types of governmental action at every level of government. It purports, in a way, to be a super-law–not quite an ordinary statute.
And that’s part of what got it into trouble with the Supreme Court. In Boerne v. Flores, the Court struck down RFRA as applied to the states. Why? Well, believe it or not, the powers of the federal government are limited to what is anchored in the Constitution. The Supreme Court found that in RFRA, the Congress exceeded its authority under section 5 of the Fourteenth Amendment, thereby encroaching on the power of the states. It also did not escape the Court’s notice that Congress was trying to “undo” their own interpretation of the Constitution.
Congress’ power under § 5, however, extends only to “enforc [ing]” the provisions of the Fourteenth Amendment. The Court has described this power as “remedial,” South Carolina v. Katzenbach, supra, at 326, 86 S.Ct., at 817–818. The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”
Some people call RFRA a “civil rights act,” upon analogy to the Civil Rights Acts, which WERE upheld by the Court. It is important to point out that it is precisely this analogy between RFRA and the Civil Rights Acts which the Court rejected in Boerne.
RFRA is just an ordinary statute–it is not a superstatute, it is not a quasi-constitutional behemoth statute. What follows from this? In my view, the clear conclusion that attempts to frame the bishops’ religious liberty claims primarily as a matter of RFRA are mistaken.
1. RFRA applies to the HHS regs–because they are regs, and a statute trumps regs. It wouldn’t help if the offending provisions were explicitly in the health care reform law itself. RFRA can’t bind future congresses. In that case, the bishops would have to argue on the basis of the constitutional law itself.
2. Some of the problems mentioned by the bishops in their list of worries are state actions, not federal actions–such as Alabama’s immigration law. Again, not resolvable under RFRA (although it is important to remember that STATE constitutional protections can be invoked against state laws.)
Tomorrow I will say something about United States v.Lee.
Tags: contraception, HHS, religious freedom, USCCB
The law does indeed have pedagogical power, as you suggest it does, Professor Kaveny.
But the Catholic bishops in the USCCB are not students of the law.
The Catholic bishops in the USCCB are just using the expression “freedom of religion” as a catch-all expression to mount their campaign, or whatever you want to call their effort.
I know, I know, you want to be analytical. Perhaps you should collect your analytical observations and reflections together in a full-fledged essay for COMMONWEAL or another suitable outlet.
The link in the text to the fourteenth amendment doesn’t work. This one should:
http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
Scalia, who wrote the opinion for the court in Smith, pointed out that the position taken by Smith existed before Sherbert
“Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):
‘Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.’
(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “Laws,” we [Chief Justice Waite] said,
‘are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.’
Id. at 166-167.
Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a
‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”
Long list of cases follows.
More discussion of Smith:
http://en.wikipedia.org/wiki/Employment_Division_v._Smith
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0494_0872_ZS.html
The second has links to the various texts.
Cathleen, may we have your Westlaw login and password so we can read the links in your ninth paragraph?
To see what what the Religious Freedom Restoration Act was intended to return to.
http://en.wikipedia.org/wiki/Sherbert_v._Verner
http://www.casebriefs.com/blog/law/constitutional-law/constitutional-law-keyed-to-sullivan/the-religion-clauses-free-exercise-and-establishment/sherbert-v-verner-3/
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=374&invol=398
Uh, no.
Request for clarification if practical. The Smith opinion quote and elsewhere refer to “individual”. My limited understanding of the First Amendment is that the rights apply to each citizen, one by one, who may assemble if they wish. Does an organization or institution as an entity have the same or similar rights?
For example, does the Diocese of Phoenix as such have rights, or is it only each of the individuals who assemble there for a common cause? Internally to the Church, one of them is the papally appointed bishop. Is his citizenship therefore any different from any other citizen’s?
Cathleen, may we have your Westlaw login and password so we can read the links in your ninth paragraph?
David Smith:
There is Westlaw by Credit Card. May we have your Visa or MasterCard number, expiration date, and security code so we can log in?
Thanks in advance!
Jack Barry: As you may know, the Supreme Court has famously decided recently that corporations as legal persons (a legal fiction, as it were) have free-speech rights and can exercises their free-speech rights by making campaign contributions.
So if corporations as legal persons have free-speech rights, why wouldn’t corporations as legal persons also have freedom of religion rights as well?
You mentioned the Diocese of Phoenix. It’s a legal corporation, as are other Catholic dioceses throughout the United States.
Each Catholic college and university in the United States is a legal corporation.
Each Catholic hospital in the U.S. is a legal corporation.
So the term “individual” that you mentioned should apply individual corporations, because corporations are legal persons.
This is how I see the question. But what do others think regarding this question?
“Smith clearly says that legislatures can make exemptions from generally applicable laws for religious practices–I am not sure that it encourages such practices, as some have suggested in my previous thread.”
I don’t think it would be proper for the court to encourage it. That’s a political decision that they belongs to elected representatives in the legislatures. They have gone as far as necessary in saying that it would be permissable for government to make exceptions for religious practices.
“In my view, the clear conclusion that attempts to frame the bishops’ religious liberty claims primarily as a matter of RFRA are mistaken.”
I don’t know of anyone who has said “Aha, we have RFRA and that solves all the bishops problems” It’s possible that the HHS regulations may be thrown out based on REFRA, but it’s not a sure bet that they will be. They could also be thrown out as being unconstitutional as judged by the Smith standard but that’s not sure either. That’s why Becket has raised both issues.
And, as you have pointed out, RFRA doesn’t apply to actions by a state so, again, it is not a solution to all of the bishops’ problems.
However, it’s not clear to me what you want the bishops or anyone else to do about Smith. It is settled law and only the Supreme Court can change it. The history of RFRA demonstrates that it can’t be overturned by Congress. All Congress can do is say that federal regulations must satisfy the standard established in RFRA – which has nothing to do with whether they are constitutional or not.
Uh, Cathleen – and David N – that was a joke. I see it needed a smiley. Live and learn.
” All Congress can do is say that federal regulations must satisfy the standard established in RFRA – which has nothing to do with whether they are constitutional or not.”
More precisely, it can say, as it has, that “government” shall not substantially burden a person’s exercise of religion – but with these definitions
As used in this chapter—
(1) the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity;
(2) the term “covered entity” means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;
http://www.law.cornell.edu/uscode/text/42/2000bb-2
The RFRA also provides a definition of “exercise of religion”
“(4) the term “exercise of religion” means religious exercise, as defined in section 2000cc–5 of this title”
Which is
“(7) Religious exercise
(A) In general
The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
(B) Rule
The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.”
http://www.law.cornell.edu/uscode/text/42/2000cc-5
Regarding not being able to bind future Congresses, it does what it can by providing a Rule of Construction:
(a) In general
This chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.
(b) Rule of construction
Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.
http://www.law.cornell.edu/uscode/text/42/2000bb-3
Mr. Hayes, Gobitis was overruled. The minority chided Scalia for reviving an approach that had long been repudiated. Incidentally, the best case for reading the conflicting accounts of the history is the Santeria case.
http://www.oyez.org/cases/1990-1999/1992/1992_91_948/
Interesting – and discouraging – to see how important matters of principle are decided by bickering among lawyers and judges concerned not with morality or ethics but with semantic hair splitting.
Nothing that I say here is directly relevant to the technical legal issues that are the express topic of this thread, but they do have some relevance to the general issue of the HHS mandate. Furthermore, what I have to say is to be read as one long question about how to look at this issue from the standpoint of good political practice. Here goes.
Suppose one assumes the following:
1. The federal government has a general responsibility to see that good health care is available to its citizens. How it does so is an important part of public policy.
2. The federal government has a responsibility to insure that workplaces are so organized and managed that they do not unnecessarily burden the health of the employees.
3. Good medical practice has established the importance of preventive care for the overall well-being of people. For example, annual check-ups are regarded as normal good medical practice.
4. History shows that often and for many employees, the job market is one in which the employer has considerably more bargaining power than the employee does.
Given these assumptions, it seems to be a normal function of government to establish policies that make provisions for employees having access to high quality medical care, including reasonable preventive care. It is a prudential matter to determine what exact policies would best accomplish this objective.
Application to the HHS mandate:
If, as apparently is the case, from a purely medical standpoint, making contraceptives available is reasonably construable as part of good preventive medical practice, then its inclusion in the health care provisions that the government establishes as part of the way that it discharges its responsibilities to its citizens. Were there a single payer policy in place, that policy might well include the availability of contraceptives. If some other set of governmental policies are decided upon, it is not evident why that would preclude making contraceptives available. (I leave aside here the questions of sterilization and the “morning after” pill).
My overall question: What would be the moral basis for for any employer of “non-ministerial” employees to object to such a governmental policy? I don’t see one, but as I’ve shown often enough, I’m no stranger to mistakes.
Also unhappy with the Bishops’ statement on religious freedom is the American branch of the Lefebvrite Priestly Society of St. Pius X. http://www.sspx.org/news/our_first_cherished.htm
Sorry: Didn’t see that Grant had started a thread on this already.
“Mr. Hayes, Gobitis was overruled. The minority chided Scalia for reviving an approach that had long been repudiated.”
Personally, I’m glad Barnette did overturn it, because Minersville v. Gobitis affirmed the right of the school district to require children to salute he flag. As Jackson said in Barnette, that compelled them to “declare a belief.”
However, I think Scalia quoted Frankfurter (Minersville) and Waite (Reynolds) to make the point that that Smith was not overturning precedents that went back to time immemorial, but only back as far as Barnette – and that the view adopted by Smith was the view existing before Barnette.
It may be that a future Supreme Court will decide that the view that developed from Barnette to Sherbert was the better understanding of what the Constitution requires and will overturn Smith for that reason – but it is only the Court that can do that.
People present arguments to show that Roe v. Wade was wrongly decided – but, like Smith, no one can force the Court to change settled law unless it decides itself to to it.
I’d love to get the opinion of someone more knowledgeable than I (not a high bar) on the subject of what constitutes Constitutionally-protected free exercise. It seems to me a long stretch to claim that the exercise of any religion requires one to: a) become an employer in an essentially secular realm such as health care; b) hire non-adherents; and then c) offer them a form of compensation that is restricted in such a way that it cannot be used to purchase any goods or services that are not acceptable to the religion.
I’m aware of the concept of material co-operation with evil. But the degree of the employers’ cooperation with “evil” in the case of the HHS mandate is remote — paying a benefit which the employee decides to use for a purpose condemned by the employer’s religion, whether that be contraception, mental health care, blood transfusions, etc. — while the impact on the employee who would otherwise be restricted in their use of their own benefit is direct.
The law versus ethics is indeed quite the conumdrum. I’m guessing the laws being debated on this particular topic were made by us. If so, we have a solution. We can change them. A inelegant suggestion ignoring a great deal of required effort and expertise, I agree. As for ethics I do so hope we are not the source of those “laws”. If my hope is true then the obvious problem is the expensive of the drive to the source considering today’s gas prices. Only a very wealthy person would even consider such a journey at present.
Professor Kaveny,
The United States Conference of Catholic Bishops claims to religious freedom have no footing in American Constitutional Law — the freedoms they claim for Catholicism cannot coexist with the religious beliefs, or non-belief’s, of other citizens.
The United States is a pluralistic society. Therefore, the Bishops’ religious freedom claims fail as a matter of Catholic theology — they do not address church-state relationships as they exist under a democratic government that accords equal dignity to all citizens. See John Courtney Murray, “Religious Liberty: Catholic Struggles with Pluralism” (1993; J. Leon Hooper, S.J. ed.).
Hooper is the creator and manager of the collection of the published and unpublished works of John Courtney Murray compiled for Georgetown University’s Woodstock Theological Center’s website.
http://woodstock.georgetown.edu/library/Murray/0_murraybib.html
HARRY
The writing of John Courtney Murray that constitute Religious Liberty: Catholic Struggles with Pluralism, edited by Leon Hooper, are these four (all available on the Internet):
Leo XIII: Two Concepts of Government: Government and the Order of Culture.” Theological Studies 15 (March): 1–33
The Problem of Religious Freedom, 25 Theological Studies, at 503-75 (1964)
“The Issue of Church and State at Vatican Council II.” Theological Studies 27 (December): 580–606. Republished as “The Issue of Church and State at Vatican Council II” in Religious Liberty: Catholic Struggles with Pluralism, 199–227
“De argumentis pro iure hominis ad libertatem religiosam.” In Acta Congressus Internationalis de Theologica Concilii Vaticani II, edited by A. Schoenmetzer. Rom: Vatikan, 562–73. Translated and published as “The Human Right to Religious Freedom,” in Religious Liberty: Catholic Struggles with Pluralism, 229–44
HARRY
Wow! Useful stuff. I’ve always loved a writer with a bit of humor and satire in their pen. That seems to be case with this Murray fellow. I simply have always found it less challenging to think while chuckling. Thanks Harry.
Mr, Hartinger: Is it the bishops’ claim in their recent document that you say has no footing or the interpretation of religious freedom that you find in the works of J.C. Murray to which you direct us? Certainly, Murray was quite aware that ours is a pluralistic society, and so were the drafters of the Council’s Declaration on Religious Freedom. Or is it that you direct us to those writings of JCM in order to correct the bishops’ position? I’m asking only for clarification of your last two posts.
Fr. Komonchak,
The Bishops’ statement on Religious Freedom is a mistaken judgment if it was a statement about civil law and not a rhetorical plea for a return to the past. However, my real concern is the Bishops’ neglect of Murray’s thought as expressed his four works in your area of expertize — Vatican II:
Leo XIII: Two Concepts of Government: Government and the Order of Culture
http://woodstock.georgetown.edu/library/Murray/1954b.htm
The Problem of Religious Freedom
http://woodstock.georgetown.edu/library/Murray/1964e.htm
The Issue of Church and State at Vatican Council II
http://woodstock.georgetown.edu/library/Murray/1966h.htm
The Human Right to Religious Freedom
http://woodstock.georgetown.edu/library/Murray/1968.htm
HARRY
Harry, Thank you for the links. Interesting stuff!
I think Weigel’s comment and the excerpt from the USCCB sums up the matter effectively:
GW – ‘But as the Ad Hoc Committee points out, in explaining that religious freedom “is not only about our ability to go to Mass on Sunday or pray the Rosary at home”, the issue beneath these issues is the advance of Leviathan, often in the name of imposing the dictatorship of relativism:’
USCCB – “What is at stake is whether America will continue to have a free, creative, and robust civil society — or whether the state alone will determine who gets to contribute to the common good, and how they get to do it. Religious believers are part of American civil society, which includes neighbors helping each other, community associations, fraternal service clubs, sports leagues, and youth groups. All these Americans make their contribution to our common life, to the common good, and they do not need the permission of the government to do so. Restrictions on religious liberty are an attack on civil society and the American genius for voluntary associations. Thus this is not a Catholic issue; this is not a Jewish issue. This is not an Orthodox, Mormon, or Muslim issue. It is an American issue.”
“Restrictions on religious liberty are an attack on civil society and the American genius for voluntary associations. ”
Still, there’s the question of whether restricting one’s employees’ ability to use their benefits in ways one’s religion does not approve of is a legitimate exercise of religious liberty. This is just assumed in most pro-restriction commentary. I think the idea needs to be argued for, not just assumed.
Still, there’s the question of whether restricting one’s employees’ ability to use their benefits in ways one’s religion does not approve of is a legitimate exercise of religious liberty.
It’s a legitimate exercise of an at-will employer’s right to negotiate the terms and conditions of one’s employment. Until contraceptive coverage is actually mandated to be part of your employer-provided health insurance, there’s no reason to believe that you have a “right” to have your employer cover it. There are employers at present who do not provide health insurance plans containing contraceptive coverage. They’re not “restricting [their] employees’ ability to use their benefits.” Contraceptive coverage isn’t one of their benefits.
An exemption to the mandate would leave us in the same position. The health insurance plan you would have under an exempted employer wouldn’t entitle you to contraceptive coverage. So it’s simply not a matter of the exempted religious employer restricting your pre-existing rights.
Until contraceptive coverage is actually mandated to be part of your employer-provided health insurance, there’s no reason to believe that you have a “right” to have your employer cover it.
I understand, but then again the current public debate is about a situation in which contraceptive coverage, among other things, is actually mandated to be part of your employer-provided health insurance. Is an exemption to that mandate required by the free exercise clause, or would it be a special accommodation for businesses owned by religious institutions? The bishops are claiming the former.
Is an exemption to that mandate required by the free exercise clause, or would it be a special accommodation for businesses owned by religious institutions? The bishops are claiming the former.
Because the bishops are saying that the way “religious employer” was defined in the regulation was too narrow. No one seems to have a problem with that very narrow class of employers being granted an exemption, which suggests that people recognize the free exercise exemption as a legitimate part of the regulation. The problem is that the exemption is drawn too narrowly. And claiming, as the administration has done, that this extremely narrowly drawn class is not meant to serve as a precedent for future definitions, and is not meant to be a standard for use in the future, but is unique to this particular regulation, doesn’t seem all that compelling. It amounts to, “Trust us.” No, thanks. This is politics and law, two areas where trust is the last thing I’m inclined to do.
The problem is that the exemption is drawn too narrowly.
Well, that’s your opinion and bishops’ opinion. I don’t see anyone making a strong case for that, though. It just gets asserted over and over.
The strong case is made by the administration itself: they insist that it’s not to be used in any other context or for any other purpose.
Imagine if they used the same definition for religiously-affiliated corporations that want to be tax exempt under 501(c)(3). Virtually every religious charity in existence would no longer be tax exempt.
The burden of justification isn’t on the people complaining about how abnormally narrow the definition is. The burden is on those who would justify the abnormally narrow definition. Precisely because it’s a remarkable, supposedly one-off innovation.
“Imagine if they used the same definition for religiously-affiliated corporations that want to be tax exempt under 501(c)(3). Virtually every religious charity in existence would no longer be tax exempt. ”
They probably still would be tax-exempt, because tax exemption doesn’t rely on having any religious affiliation at all. I run a nonprofit organization that will have 501(c)(3) status when I get the paperwork done, and it has nothing to do with religion.
No, you’re right. That made no sense for me to say. :P
So just eliminate the middle paragraph. I’d stand by the rest of what I say.