Yesterday the Supreme Court ruled in Burwell v. Hobby Lobby that closely held corporations cannot be required to provide contraception coverage in employees’ health insurance. Opponents of Obamacare’s contraception mandate claimed victory, as did opponents of the law more generally, as well as many Americans with deep religious convictions.
Hobby Lobby, a family-owned business that has grown from a mom-and-pop operation in the 1970s to a chain of 514 stores that employs more than 21,000 people, is the largest company to challenge the health-care law. The company’s statement of purpose says the board of directors is committed, first and foremost, to “honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”
So it’s easy to see why the owners objected to Obamacare’s requirement that employers pay for forms of contraception that some consider tantamount to abortion, like the morning-after pill.
But at the heart of the contraception-mandate debate is a question that has little to do with health insurance or contraceptives and everything to do with the scope of government regulation. Conservatives rejoiced in the Court’s decision, but no matter how it ruled the result was bound to be unsatisfying because it could not address the root of the problem: Pervasive, systematic regulation of private activity requires the violation of rights and liberties the Constitution was meant to protect.
Hobby Lobby offers a fine example of why this is so, and why the Court’s attempt to address the fundamental problem with Obamacare’s contraception mandate ultimately fell short. Hobby Lobby sought shelter from the mandate under the Religious Freedom Restoration Act of 1993 (RFRA), which stipulates that “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.”
The purpose of the RFRA was to create a statutory right where a constitutional right doesn’t exist — or, at least, is no longer held to exist. The Court’s 1990 ruling in Employment Division v. Smith upended 30 years of precedent and returned the Court to a standard it first applied in Reynolds v. United States, in 1878. In that case, the Court found that a Mormon polygamist in the Utah Territory could not claim that his First Amendment right to free exercise of religion justified his violation of a federal anti-polygamy law. The Court’s reasoning, in Reynolds and later in Smith, was that a generally applicable criminal law does not raise any free-exercise issues whatsoever. That is, the Constitution’s free-exercise clause protects religious beliefs but not necessarily religiously motivated actions that run afoul of neutrally enforced federal laws, even if such laws indirectly impede the exercise of religion. Put bluntly, it means that a religious sect can’t claim a free-exercise right to, say, perform a human sacrifice or engage in ritual sex with minors. Because laws against murder and rape are uniform and do not target any particular religion, they raise no free-exercise questions and cannot be challenged on those grounds.
The Smith ruling, however, provoked outrage in Washington, and Congress responded by passing the RFRA, which sought to return religious-exercise cases to a pre-Smith standard. In practice, this meant that federal, state, and local laws that interfere with religious exercise would have to serve a “compelling state interest.” That standard treats free exercise as a fundamental right, one of the rights of conscience embedded in the First Amendment. The burden of proof is therefore on the government, which must show that a compelling state interest is served by any law that imposes a significant burden on an individual’s religious conduct.
The trouble with such a standard is that in practice it requires judges to enmesh themselves in policy debates that should be settled by elected legislatures, and to wade into religious matters about which they have no special expertise or authority. In Smith, the court was asked to decide whether Oregon could prohibit the use of peyote in a religious ceremony as part of a general prohibition on the drug, and whether the state could then deny unemployment benefits to two people fired for using it. In his majority opinion, Justice Scalia dispenses with the argument that the Court must apply a “compelling state interest” standard, arguing that although such a standard is appropriate in cases involving racial discrimination or government regulation of free speech, in this case it would produce “a constitutional anomaly”:
The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this.