The Supreme Court’s 5-4 decision in Burwell v. Hobby Lobby Stores, where religious exemptions to the contraception mandate in the Affordable Care Act were extended to a private for-profit company, has produced jubilation among those who regarded the mandate as a grave threat to religious liberty and consternation from those who think access to no-cost contraception should be a fundamental component of health care for women. Critics complain that in extending the accommodation to Hobby Lobby, the court has misinterpreted the Religious Freedom Restoration Act of 1993 in order to take the unprecedented step of recognizing the religious rights of certain for-profit corporations. The likely result will be an endless stream of similar religious claims from other businesses. Anticipating that criticism, the majority opinion, written by Justice Samuel Alito, asserts that the case was decided on narrow grounds, and argues that worries about exemptions being granted to religious groups opposed to vaccinations, for example, are unfounded. Writing for the four dissenting justices, Justice Ruth Bader Ginsburg questioned such assurances, arguing that the Court “has ventured into a minefield.” “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.’”

In granting the accommodation to Hobby Lobby, the majority ruling further contended that the administrative mechanism used to accommodate religious entities could easily be extended to commercial enterprises. Three days after issuing the Hobby Lobby ruling, however, the Court granted an emergency injunction to Wheaton College, temporarily allowing the Evangelical institution to avoid complying with even the minimal administrative paperwork required by the government in order to receive an exemption. Wheaton, like some Catholic groups, maintains that filling out the form that notifies the government and its insurer that it desires an exemption will still facilitate access to contraceptive methods it opposes on religious grounds. All three of the Court’s women justices vociferously objected. “Those who are bound by our decisions usually believe they can take us at our word,” wrote Justice Sonia Sotomayor. “Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might...retreats from that position.”

So, at this early date, it very much remains to be seen whether the Court has issued a narrow or sweeping decision with regard to the scope of religious exemptions from laws such as the Affordable Care Act. Supreme Court cases, however, are not only or primarily about the named plaintiffs. Their purpose is to set the normative framework that governs the decisions of countless other unnamed persons (both natural and corporate), who may never have the opportunity to see the inside of the courtroom. It is the future course of cases that makes me worry about the majority opinion—not the outcome in this particular case. For what the Court has done in the Hobby Lobby case is transform the Religious Freedom Restoration Act—a statute enacted by Congress to counteract a bad Supreme Court decision that harmed powerless religious minorities—into a tool for powerful minorities to resist what they believe to be dangerous social and political change. For example, it is not hard to see how the religious exemptions justified in the Hobby Lobby decision could also be applied to businesses that object to dealing with same-sex couples.


The Original Purpose of RFRA

As “the findings and purposes” of the law itself make clear, Congress enacted RFRA for a very specific reason. In Employment Division v. Smith (1990), the Supreme Court had significantly relaxed the test used to evaluate the government’s case in religious liberty cases. In short, religious exemptions from otherwise generally applicable laws became much harder to come by. In response to protests from both sides of the political aisle, Congress passed RFRA, which was intended “to restore the compelling interest test as set forth in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972).” The government, in other words, had to demonstrate a compelling state interest—such as maintaining a system of taxation or protecting public health against infectious disease—if it wanted to burden religious exercise. Moreover, the government needed to show that it promoted that interest by a law tailored to impinge as little as possible on religious exercise. In practice, however, the government has nearly always won such cases. Yet while RFRA clearly came down on the side of religious expression, it did not appreciably expand the religious liberty protections available to claimants before the Smith decision. Very few cases have appeared under federal RFRA in the past twenty years; most have involved members of small religions claiming an exemption from general laws that burden them without conferring any discernible benefit on third parties. A good example is Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006), in which the Supreme Court held that RFRA protected the right of a tiny New Mexican sect of a Brazilian church to import a particular type of tea for sacramental use, despite its hallucinogenic properties that put it in the cross hairs of federal drug laws.


RFRA’s Mutation

Justice Alito’s opinion in Hobby Lobby, however, has worked a powerful mutation on the statute. Ignoring the purposes of the legislation, not to mention its legislative history and subsequent application, Alito argues that “nothing in the text of RFRA...was meant to be tied to this Court’s pre-Smith interpretation of the Amendment.” That is a highly selective if not deceptive interpretation of the statute. Alito virtually ignores the Court’s own earlier interpretation of RFRA in Boerne v. Flores, which recognized that the law “purported to codify” the pre-Smith religious freedom jurisprudence. He further claims that the Religious Land Use and Institutionalized Persons Act of 2000 requires that the Court interpret RFRA to protect “religious exercise to the maximum extent.”

The land-use act did amend RFRA’s definition of religious exercise to clarify that it included non-central as well as central practices of faith. But this amendment did not widen RFRA’s purpose beyond restoring pre-Smith jurisprudence. Nor did it require a “broad interpretation” of the earlier statute. And the land use act, which is focused narrowly on the use of land by religious entities and the free exercise of rights of institutionalized persons, says nothing whatsoever about how to interpret RFRA. In short, Alito wants it both ways. Looking at the text of RFRA, he focuses only on the letter of the statutory mandate, ignoring even the congressional purpose. Looking at the text of RLUIPA, he expansively interprets its spirit, extending it so far as to reframe the scope and reach of RFRA in ways that are beyond both the provisions and congressional intent of either law.

What groups should be exempt from the Affordable Care Act’s contraceptive mandate is a difficult issue. On the one hand, from the perspective of many religions, political questions are also moral questions—on every level. And for most people, moral questions invariably have a religious dimension. On the other hand, living in a pluralistic representative democracy, we are inevitably subject to laws and policies that we believe to be unjust. Except in the most extreme cases, however, we cannot expect to be exempted from laws that otherwise apply to everyone else. Here, of course, facts matter. If the contraception methods Hobby Lobby claims act as abortifacients do not in fact cause abortion, the case for exemption is seriously weakened.

In a pluralistic society, the religious freedom of one party needs to be balanced against the rights and the legitimate expectations of others. In this case, the consciences of some religious people must be weighed against the health-care concerns of women more generally, as judged by the people’s legitimately elected representatives. Yet as Ginsburg emphasizes in her dissent, Alito’s opinion gives us precious little guidance on what principles of law we should use when balancing those conflicting concerns. For example, while the ruling recognizes that corporations have free exercise rights, it identifies those rights solely with the owners of the corporation. The legitimate interests of other corporate stakeholders, particularly the employees, who may not share their employer’s religious views, evidently have no standing. In this instance, it seems that more money buys you more religious freedom—and more freedom to infringe on the choices of others.

Second, the opinion provides virtually no way to evaluate the strength of a plaintiff’s religious-liberty claim. Although RFRA’s text speaks of “substantial” burdens on a claimant’s exercise of religious liberty, the ruling pulls the teeth of this requirement. According to Alito and the majority, a burden is “substantial” as long as a claimant sincerely says it is. But as Ginsburg noted, this is an invitation to run through a minefield, not a way out of one.

The injunction granted to Wheaton College reveals the problem. If it is a substantial burden for a religious institution merely to sign a paper notifying the insurance company of its objections to contraception, then why isn’t it a substantial burden for a pacifist to sign a similar paper for the government conscientiously objecting to military service? But if we go down that road, how will we tell the difference between a conscientious objector and a deserter or draft dodger?

At a minimum, we can assess the substantiality of a burden by looking at whether it requires direct participation in an activity or merely indirect facilitation. We need to acknowledge the difference between, for example, fighting in an unjust war and paying taxes that help support an unjust war. The former is a substantial burden; the latter is not. We need to acknowledge, as well, that it cannot be a substantial burden on one’s free exercise merely to inform the government of one’s objection to a law. So too, it is one thing to be asked to provide contraception oneself, another to contribute to a benefit plan that covers contraception, and still another to be asked to inform the government of one’s religious and moral objections to contraception. The first is a substantial burden, in my view. The second and third are not.


Becoming What They Hate

Jurists like Justice Alito (and the Republican politicians who appointed them) have long crusaded against “judicial activism,” especially “legislating from the bench.” Their main object of ire, of course, is Roe v. Wade (1973), which not only found a right to abortion in the penumbras of the Constitution, but also required the Court to delve into the messy business of evaluating various schemes for regulating abortion.

In what may be the chief irony of Hobby Lobby, the majority opinion puts the Court in much the same position with respect to religious liberty. Alito accepted without scrutiny the plaintiff’s claim that the contraception mandate substantially burdened its exercise of religion. For the purposes of this decision, he assumed (albeit grudgingly) that the government had a compelling interest in making no-cost contraception available. In the end, the case turned on the third prong of the RFRA test: Did the government adopt the least restrictive means to achieve its end? He pointedly did not rule out the possibility that accommodating religious objections could require the government to adopt new programs—which would be supervised and second-guessed by the Court. That outcome now seems more likely after the injunction granted to Wheaton College. How is this not legislating from the bench? The conservative majority has, I would argue, become what it has so long hated.

The test proffered in the majority opinion in Hobby Lobby amounts to little more than judicial intuitionism. Does the government have a compelling state interest, say, in combatting racism? In the majority opinion, Alito suggests the answer is yes—but we’re not sure on what grounds. What about combatting discrimination on the grounds of gender or sexual orientation? My guess is that he would say no, but there’s no way to know. The logic of the Hobby Lobby decision is, I fear, as arbitrary as it is partisan.

Published in the August 15, 2014 issue: View Contents

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.

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