Another Ridiculous DOJ Argument Against Religious Liberty

by Ed Whelan

Yesterday, a Seventh Circuit panel heard oral argument in two cases in which Catholic business owners and their companies argue (correctly, in my judgment) that the Obama administration’s HHS mandate on contraceptives and abortifacients violates their rights under the federal Religious Freedom Restoration Act. According to this Chicago Tribune article:

[I]n an unexpected twist during a hearing on the merits of a preliminary injunction, the lawyer for the U.S. government argued that accommodating the business owners’ religious beliefs could violate the First Amendment as well.…

Alisa Klein, an attorney for the U.S. Department of Justice, said allowing a company to impose a religious framework on a diverse workforce would amount to fostering or enabling religious practice.

“At bottom, the concern is about establishing religion,” Klein said.

There are two good reasons why the DOJ attorney’s argument that vindicating the RFRA rights of the business owners would violate the Establishment Clause was an “unexpected twist.”

First, DOJ never made that argument in either of its Seventh Circuit briefs in the two cases.

Second, there is good reason that it didn’t, for the argument is inane. RFRA imposes against the federal government the general standards of Free Exercise jurisprudence that existed before the Court’s 1990 decision in Employment Division v. Smith. Thus, if a claimant has a meritorious RFRA claim, that means that he would have had a meritorious Free Exercise claim under the pre-Smith regime. Just as vindicating that Free Exercise claim wouldn’t have violated the Establishment Clause, so vindicating business owners’ RFRA rights wouldn’t violate the Establishment Clause.

In sum, whether or not the business owners have a valid RFRA claim should be determined by applying the terms of RFRA. There is no basis for invoking Establishment Clause concerns to read RFRA in a manner that is less protective of religious liberty.

The DOJ lawyer’s argument (as paraphrased by the article) that the business owners are seeking “to impose a religious framework on a diverse workforce” is also wrong. As I explain (in the first hyperlinked item), the business owners are seeking merely not to be dragooned by the federal government into violating their religious beliefs, and the federal government has ample alternative means of providing contraceptive/abortifacient coverage to their employees.

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