Last week the Supreme Court decided, under the Religious Freedom Restoration Act, known as RFRA, that Hobby Lobby, and other closely held profit making corporations, could claim religious exemptions from federal law, and they could withhold some forms of contraception from their health plans.[i]
RFRA was a reaction to a 1990 decision about Native American use of peyote at religious ceremonies in which Justice Scalia wrote for the Court that the First Amendment did not require a religious exemption for the “incidental effect of a generally applicable and otherwise valid provision.”[ii] The rule could not be targeted at any religion; it had to be “neutral.”
That seemed like a reasonable attempt to create a fair rule. But many of us reacted that there was nothing neutral in a set of rules that banned peyote but permitted wine at religious exercises, or in generally applicable rules that had obvious and discriminatory effects on Native Americans. It was a good example of how apparently neutral rules could be designed with large discriminatory consequences – think Sunday or sabbath closing laws or rules about the ways we can dress that do or don’t prevent us from wearing a yarmulka, a hajib, or a pendant with the symbols of our faiths. So Congress passed RFRA. It said people should be able to practice religion their own ways unless government had a compelling interest in making everyone conform to the general rule and there was no less restrictive way of accomplishing that purpose. RFRA was understood as restoring the rule of a Warren Court decision, Sherbert v. Verner.[iii]
But that rule had its own problems. As Scalia noted in the peyote case, Sherbert had become almost a dead letter. So he killed it. The Hobby Lobby decision says it revived Sherbert in the context of RFRA. But the concepts of compelling interests and less restrictive means have always been gamed by the Court. Hobby Lobby is no exception. The Court conceded that women’s health is a compelling interest and that contraceptive devices are important for the lives and health of some women. But it said there was a better way – someone else, either the insurance companies or the general public, could pay for the IUD or other methods that Hobby Lobby objected to. And if Hobby Lobby saved much money by not paying, competitors would pay. We can argue about whether the alternatives are fair to everyone else. But Congress is not going to help.
Most of us think freedom of religion protects forms of worship that do not impose significant costs on others. If there are significant costs to others, the rest of us have the right to draw the line. Including contraceptive coverage stemmed from a panel set up by the National Academy of Sciences and the Court accepted their conclusion, that access to contraceptives and to the specific ones at issue would save the lives and health of many women. Withdrawing that benefit is a significant cost. And giving people the right to opt out of health laws in ways that put others at risk will put religious quarrels center stage, increasing the level of polarization in our society. I would have dissented in Hobby Lobby.
Any of the rules, the rule of neutrality in the peyote case, or the compelling interest rule of RFRA could be interpreted in a truly fair and impartial way. But none of the rules is airtight. Doing justice requires good judgment. That’s been on short supply on this Court.
[i] Burwell v. Hobby Lobby Stores, 2014 U.S. LEXIS 4505 (U.S. June 30, 2014).
[ii] Employment Div. v. Smith, 494 U.S. 872, 878 (U.S. 1990).
[iii] 374 U.S. 398 (U.S. 1963).
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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