June 28-July 4


Why "Religious Freedom" Has Gotten So Out of Hand

The Constitution isn't the issue in today's religious freedom debate.

The Supreme Court made a very important statement that seems to have gone largely unnoticed in its landmark Hobby Lobby ruling on Monday. When it comes to religious freedom, the justices declared, the Constitution doesn’t matter.

You may think I’m exaggerating, but I’m not. The court unambiguously said that, in considering whether someone’s religious freedom is being violated, it may ignore traditional constitutional limits and instead invoke a much higher standard that, in its opinion, is required by statute. Because of this higher statutory standard – under the so-called Religious Freedom Restoration Act (RFRA) – the court’s 5/4 majority ruled that for-profit corporations may exercise religious objections to deny birth control coverage to female employees.

The court repeatedly emphasized that its decision results from the higher standard of religious freedom required by RFRA. “By enacting RFRA, Congress went far beyond what this court has held is constitutionally required,” Justice Alito wrote. (Alito, p. 17) “RFRA was designed to provide very broad protection.” The definition of religious freedom under RFRA, Alito said, should be understood as “an obvious effort to effect a complete separation from First Amendment case law.”

Thus, those outraged by the Hobby Lobby ruling should understand that the outcome is not the result of constitutional interpretation, but statutory interpretation. Why is this important? Because changing a statute is much easier than changing the Constitution.

To change a statute, the task is to convince Congress to pass a new law repealing or amending the statute. The constitutional amendment process, of course, is much more difficult, and therefore extremely rare. (The only other possible alternative – waiting for the justices on the court to change – is also no quick fix.)

Prior to RFRA, in defining religious freedom under the Constitution, the Supreme Court was much more restrictive, usually using what was known as a “balancing test” in analyzing free exercise claims. In the case of Braunfield v. Brown, for example, the court refused to find that Sunday closing laws infringed on the religious freedom rights of Jewish merchants (who were already closing on Friday night and Saturday, and thus were burdened by having to close on Sunday as well). But in the case of Sherbert v. Verner the balance tipped the other way, as the high court allowed a claim for unemployment compensation by a Jewish man who lost his job because he refused to work Saturdays.

RFRA was passed in 1993, mainly in response to another case involving unemployment benefits. Two men were denied benefits after they were fired from their jobs as drug counselors because they had used the hallucinogen peyote. Because the peyote was used in connection with a religious practice, the men argued that constitutional religious freedom protections prohibited the denial of unemployment benefits. The court, however, in Employment Division v. Smith, disagreed, saying the unemployment compensation law involved was “neutral and of general applicability” (i.e., on its face it was not hostile to any religion, and it was not passed with the intent of burdening any particular religious group) and therefore didn't violate anyone's religious freedom.

Seeing the Smith outcome as an injustice (especially when contrasted with Sherbert), many liberals joined conservatives in pushing for RFRA, to make clear that the government should be more accommodating toward religious freedom claims. The RFRA bill passed almost unanimously (the notorious conservative North Carolina senator, Jesse Helms, was one of only three “no” votes).

Obviously, liberals had no idea the monster they were creating with RFRA. Since its passage, increasingly vocal claims of “religious freedom” emanating from conservatives have become a defining characteristic of the modern culture wars.

In numerous passages in Hobby Lobby, Alito reiterates the conservative court's broad definition of religious freedom under RFRA. When it was argued that no corporation had ever been given First Amendment religious freedom protections, for example, Alito noted that RFRA was not bound by such limitations: “[It]would be absurd if RFRA merely restored this court’s pre-Smith decisions ... and did not allow a plaintiff to raise a RFRA unless the plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith.” (Alito, p. 27)  

As such, the slim majority in Hobby Lobby (ironically, a majority of five Catholic men ruling on women's reproductive rights) is saying that constitutional free exercise standards are only a bare minimum, but well below those provided by RFRA.

The Hobby Lobby decision has incensed many, particularly those concerned about women’s rights, reproductive freedom, and the entanglement of religion and government. These individuals and groups should be focusing their attention on educating the public about how RFRA has redefined “religious freedom” in an extra-constitutional way. The law may be less difficult to change than many realize.

Follow David Niose on Twitter: @ahadave

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