The HHS Mandate Meets an Immovable Object

by Ken Starr
RFRA was written to be easily strong enough to favor Hobby Lobby.

Presidential signing statements are typically dry as dust. Not so with the Religious Freedom Restoration Act of 1993, the landmark statute at issue in the closely watched Hobby Lobby case, to be argued in the Supreme Court on March 25.

During the first year of his two-term presidency, Bill Clinton waxed eloquent when signing that bill into law. The president forcefully warned of judicially created dangers to Americans’ religious freedom, addressing the nation not only in legal and constitutional terms but with reference to American culture more broadly:

Today this event assumes a more majestic quality because of our ability together to affirm the historic role that people of faith have played in the history of this country and the constitutional protections those who profess and express their faith have always demanded and cherished. 

Invoking Stephen Carter’s then much-discussed book, The Culture of Disbelief, the still-new president reminded the nation that vigilance in defense of religious freedom was categorically imperative. The Supreme Court, he lamented, had inflicted a grievous wound on America’s first freedom in the case of Employment Division, Department of Human Resources of Oregon v. Smith.

There, the Court rejected the religious-freedom claims of two Native Americans who had lost their state-government jobs solely because they used peyote in their traditional worship celebration. The Oregon case contained not a hint of illicit trafficking or extra-sacramental abuse, but the Supreme Court majority was unmoved by the discharged employees’ claims that peyote was a sacrament in Native American worship.

The Smith Court laid down a bright-line rule: If a governmental law or regulation that infringes on religion is “neutral” and “generally applicable” to one and all — in effect, if the measure is not directly aimed at religious practices — then it is constitutionally permissible. The judiciary would no longer be in the business of carving out exemptions or creating exceptions to neutral laws of general applicability. If a faith community (or individual) wants an exemption, in other words, go lobby the politicians.

Cabining once-robust judicial power, the Smith Court went to some length to distinguish two landmark cases that had done exactly what the majority of justices now condemned as judicially out of bounds. The first, Sherbert v. Verner (decided in 1963), upheld the claim of a Seventh-day Adventist for state unemployment benefits when her employer fired her for being unwilling to work on the Sabbath. The second, Wisconsin v. Yoder (decided in 1972), provided a constitutionally based exemption for Old Amish parents seeking to halt public schooling once their students had finished the eighth grade.

Those two oft-cited cases had been on the books for decades. The heavens had not fallen, nor had a clamor arisen in legal or government circles for the cases to be reversed. The Oregon peyote case thus came as a constitutional bolt from the blue.

In response, Congress erupted in righteous indignation. The House was unanimous, the Senate nearly so (97–3), in passing the Religious Freedom Restoration Act in 1993. The idea was simple: Religious freedom would gain strong statutory protections, and the Supreme Court’s anti-liberty ruling in the sacramental-peyote case would be reversed. Congress and the president cheerfully collaborated to “restore” the body of judge-created law that had been deeply compromised, if not for all practical purposes interred, by the court.

In their zeal to restore religious freedom, however, the political branches had overlooked a basic lesson from Civics 101. In a constitutional republic, the Supreme Court is indeed supreme when it comes to saying what the Constitution means. That much has been clear since 1803, when Chief Justice John Marshall spoke for a unanimous Court in the iconic case of Marbury v. Madison. RFRA represented an insurrection, not a restoration, to the extent that Congress and the president sought to apply its mandate to states and local governments.

Sure enough, the Court did not take lightly the political branches’ woodshedding attempt. Five years after President Clinton’s vigorous signing statement, the Supreme Court pulled rank and invalidated RFRA to the extent it applied beyond federal power. In a 1997 case involving a Catholic parish’s attempt to expand its facilities outside San Antonio, the Court concluded that Congress enjoyed plenary power to restore liberty as to the federal government, but that was it.

Writing for the majority, Justice Anthony Kennedy performed an elaborate compare-and-contrast exercise. As opposed to the extraordinary circumstances justifying the Voting Rights Act’s extension of federal Fourteenth Amendment power over the states back in the 1960s, little if any systemic problem had been demonstrated in congressional hearings with respect to state action curtailing religious liberties. Not even close. Federalism — a jurisprudential hallmark of the Rehnquist Court — logged yet another victory, in a decade that represented a high-water mark of high-court solicitude for states’ rights.

That decision — City of Boerne v. Flores — is hugely important to constitutional law, but its basic holding means that in Hobby Lobby, the federal government now has to run the RFRA gauntlet. There is no states’-rights dimension to shield HHS’s regulations from RFRA’s broad pro-liberty sweep. For the government to succeed in a RFRA-grounded challenge is a formidable task, especially in light of the two cases (Sherbert v. Verner and Wisconsin v. Yoder) snatching away rights that RFRA expressly “restored.”

In plain English, in Hobby Lobby the Obama administration now has to demonstrate to at least five justices that HHS has a “compelling” governmental interest in requiring the company (i.e., its owners, five members of the Green family of Oklahoma City) to provide all 20 contraceptive methods ordained by the FDA. While the Evangelical Christian Greens have no qualms about 16 of the 20 methods, they profoundly object to being required to offer their employees four methods that they believe may induce the taking of innocent human life. As to the sincerity of their objection, there is no doubt.

Nor is this an idiosyncratic belief, highly disruptive of orderly government, akin to woebegone arguments that taxation is unbiblical or that participating in the Social Security program abridges freedom of conscience.

The Greens are the real thing; their story embodies the American dream. The founders, David and Barbara Green, started in a garage with a simple idea and a deep-set work ethic. But they were not monomaniacal in their quest for business success — far from it.

Hobby Lobby’s stores around the country close on Sundays, but the Greens, faithful churchgoers themselves, don’t take roll among the employees. It’s up to their 13,000 employees to decide whether to join a faith community or spend their free time otherwise on what the Greens honor as the Lord’s Day. Call it freedom of choice.

Far from quixotic bring-down-the-entire-government sorts of claims, the Greens’ specific concerns about HHS’s policies are shared broadly and deeply by millions of Americans. Catholic bishops, Evangelical leaders, and Orthodox Jews are all singing the same pro-life refrain.

The federal government doesn’t seem to care about their objections. According to the federal government, reproductive freedom, vigorously supported by the expert federal agency (the FDA) and now enforced by HHS regulations, trumps religious scruples.

That’s not the way of RFRA. To the contrary, RFRA turns the tables on the government and demands a powerful demonstration of policy need and the inability to achieve that goal in a way less destructive to liberty.

That’s a daunting task. It’s called “strict scrutiny.” For obvious reasons, government lawyers aren’t eager to have to run that obstacle course. As an old saying goes, strict scrutiny is strict in theory but fatal in fact.

Faced with this uphill task, the solicitor general’s brief makes the key points under strict scrutiny’s analytic framework and does so in a presentable way. Little is said, however, about the wellspring of RFRA’s controlling standard. The brief passingly cites the fountainhead case, Sherbert v. Verner, only three times. Maybe they’re thinking if they ignore it, it’ll go away.

But that’s wishful thinking. Looming over any constitutionally based argument is what courts and lawyers call the “standard of review.” By its terms, RFRA expressly embraces the most challenging standard for the government to meet. The statute expressly points by name to Sherbert and Yoder as embodying the legal standard that courts are bound to apply.

Unsurprisingly, the government and its myriad supporters are looking feverishly for a way to avoid stepped-up review. The government lawyers think they’ve found it in the way the Green family does business: Organized as a for-profit corporation, the vast Hobby Lobby empire extends nationwide and includes a Christian bookstore chain, Mardel. To the Obama administration, that’s the end of the case. Why? Because, in the government’s view, RFRA doesn’t extend its protections to for-profit corporations. After all, how can General Motors or Google be said to have “religious freedom?” It doesn’t compute.

But the argument has its own statutory problems. By its terms, RFRA applies to all “persons,” but leaves that pivotal term undefined. That doesn’t seem to be a congressional oversight: RFRA has a section setting out four definitions, but “person” is not among them.

Then what? Congress long ago provided for a default mechanism. It first did so in 1871, in what is known as the Dictionary Act. It is federal statutory law’s counterpart to “In the beginning . . . ” The authoritative definition of “person” expressly includes a corporation, with no distinction drawn between non-profits and profits. To a textualist, the case is over.

But there is a textual wrinkle, one that the government aggressively exploits. The Dictionary Act contains opt-out language: “unless the context suggests otherwise.” This applies, the government maintains, because of the nature of for-profits and religious freedom. As the solicitor general sees it, the two don’t connect, conceptually or practically.

The Hobby Lobby case may well turn on this very technical debate. If the Greens can convince a barebones majority of the Court that unlike General Motors or Google they — five individuals carrying on a family business under the umbrella of a closely held corporation — are directly and substantially affected in their free exercise of religion, then RFRA has to be met head-on by the solicitor general.

That won’t end well. The statutory text renders RFRA’s power nigh irresistible when a government places a substantial burden on religious liberty. If exit ramps are avoided and the Court squarely faces the language and structure of RFRA in all its might, Sherbert v. Verner should prevail. That relic of the Warren Court, which lives on in 2014 by virtue of the restorative acts of a virtually unanimous 103rd Congress, represents a great source of comfort for those who believe, and who believe that Caesar has once again demanded far more than he has the rightful power to command.

— Former U.S. solicitor general and circuit-court judge Ken Starr is president and chancellor of Baylor University.