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.
Justice Scalia’s opinion in Employment Div. v. Smith, quoted above, was sometimes referenced favorably in the months leading up to the Supreme Court’s decision in Burwell v. Hobby Lobby upholding a challenge to the Affordable Care Act’s contraception mandate brought under the Religious Freedom Restoration Act (RFRA).
Smith held that a generally applicable statute—a law that applies to everyone and doesn’t target a specific religion—may not violate the First Amendment even if it burdens someone’s religious practice. Even if someone has a sincere belief that following the law, or another person’s legal actions, will compromise their soul, the First Amendment isn’t violated if the law exists and is enforced. Society couldn’t function if every law could be bent for everyone’s religious beliefs, no matter how sincere. For one thing, these religious beliefs could impact another person’s perfectly legal exercise of their own liberties, or even their access to fundamental rights.
Congress passed RFRA in response to Smith. RFRA, which I see as a tool that operates with the Free Exercise Clause, means that if a person shows a sincere belief that government action imposes a substantial burden on their religion, the action must survive strict scrutiny to be valid. Strict scrutiny means that the action must serve a compelling government interest through the least restrictive means.
These concepts arise in Zubik v. Burwell, a case in which the Supreme Court recently heard oral arguments. Both Hobby Lobby and Zubik were brought under RFRA, in a world where Smith didn’t apply, yet its theory is relevant. In both cases, the plaintiffs express a sincere belief that the Affordable Care Act’s contraception mandate substantially burdens their religious objection to contraceptives, even though other people are using contraceptives. The plaintiffs is it their role, if they follow the law, in facilitating others’ access to contraception which burdens their religion.
Hobby Lobby: Quick Summary
Prior to the 2014 Hobby Lobby decision, only religious organizations could opt out of the contraceptive mandate by filling out a form, which would notify the government, which would cover the cost of contraceptive coverage. This option wasn’t available to for-profit corporations headed by individuals whose personal religious beliefs conflicted with the contraception mandate. Some corporations brought the RFRA claim that became Hobby Lobby. Their challenge addressed only specific contraceptives which, they believed, cause abortions.
A simple analysis is as follows: the plaintiffs showed a sincere belief that facilitating access to treatment they believed caused abortions was a substantial burden on their religious exercise. Even if the government’s interest in gender equality was compelling, the means were not narrowly tailored. Forcing the plaintiffs to provide the coverage was not the least restrictive means when the opt-out available to religious non-profits could be made available to these corporations. Women would still get the same coverage, regardless of who paid, with “precisely zero” burden on their access to that coverage. Win-win, right?
But a more complex analysis raises other questions.
Does RFRA really protect a for-profit corporation?
Before and after Hobby Lobby was decided, many argued, as did the dissenting Justices, that a nonreligious for-profit corporation wasn’t a person capable of exercising or facing burdens upon their religious freedom. Hobby Lobby‘s majority held that such corporations, being comprised of people with such rights and freedoms, are capable of religious exercise that can be burdened. RFRA protects them.
But contraceptives aren’t abortion pills!
Science seemed to contradict the plaintiffs’ substantial burden. To what extent can someone bring a RFRA claim based on a scientifically false belief?
The Oral Argument podcast had two great episodes discussing Hobby Lobby. It was from these episodes that I learned the answer to this question. Scientific evidence suggests with near absolute certainty, but not absolute certainty, that these contraceptives only prevent and do not terminate pregnancy. Rather than argue over proving a negative, the government stipulated to the plaintiffs’ facts. The argument could proceed to whether the burden was substantial and if the law passed strict scrutiny. Which the majority held that it did not.
Hobby Lobby II
Zubik is a RFRA challenge to the opt-out process, the accommodation provided to the Hobby Lobby plaintiffs. By filling out the opt-out form, plaintiffs argue, they are facilitating access to contraceptives.
My initial reaction to this argument was skepticism. Couldn’t the same be said about writing employees a paycheck that they use to pay for contraceptives out of pocket?
One argument, however, is that filling out the form merely designates another party to take their place, just as some religious objectors to war felt that registering as such would designate another person to fill their place on the battlefield.
Listening to the oral arguments (transcript here) in Zubik, one argument in particular has made me pause. What if instead of paying for the plaintiffs’ insurance company to provide contraceptives to employees, the government set up shop in a room of plaintiffs’ offices and, at no cost, provided contraceptives in person? What if they did this in a way that didn’t affect the plaintiffs financially or didn’t affect the plaintiffs physically—but affects their souls?
Using the plaintiffs’ insurance companies, even if the plaintiffs aren’t paying, could be similar to using a room in their office.
To be clear, I don’t know what my opinion of this case is. I no longer think, however, that the plaintiffs’ argument is silly.
I have concerns with Hobby Lobby and Zubik that I rarely if ever see answered by the conversation surrounding these cases. The dissent in Hobby Lobby briefly addressed these concerns, as did (briefly) the oral arguments in Zubik, as well as Walter Dellinger on this episode of Amicus.
Specifically, I wish the government interest was framed more in terms of women’s health, and not just the economic and medical effects of pregnancy. What effect does RFRA have on employees’ use of contraceptives primarily for non-contraceptive medical purposes? Could religious objection affect women’s access to necessary medication primarily addressing some other issue, if the medication has incidental contraceptive effects? What effect does RFRA have on religious objection to treatment that isn’t primarily related to reproductive health? What about religious objection to medical treatment that doesn’t just affect women?