This week’s Hobby Lobby decision has brought the Religious Freedom Restoration Act, a law that most people never knew existed, into the spotlight. The decision, in which the Supreme Court ruled that Hobby Lobby could not be required to provide its employees with health insurance that covered abortifacient drugs, hinged on the obscure 1993 law.
In contrast with the thousands of pages of the Affordable Care Act, the Religious Freedom Restoration Act (RFRA) is only three pages. In spite of the fact that it is the political left that is now voicing strong opposition to the law, it was passed with the bipartisan support of a Democratic congressional majority and signed into law by a Democratic president.
In the 1980s, several cases involving the religious beliefs of American Indians were decided in which the Supreme Court ruled for the government. The Court held that Native Americans could not prevent a road from being cut through sacred lands (Lyng v. Northwest Indian Cemetery Protective Association) and that the use of peyote in religious worship could be prohibited under state law (Employment Division v. Smith). Public opinion was against the Court in these cases, which disregarded the Sherbert Test.
The First Amendment to the Constitution guarantees Congress shall not prohibit the free exercise of religion. According to NPR, legal exemptions for religious believers go back to the founding era of the United States. One well known example involves deferments from military service for conscientious objectors.
In 1963, the Supreme Court clarified this right in Sherbert v. Verner. The Sherbert Test is used to determine whether a person’s right to the free exercise of religion has been violated. First, the court must determine whether the person has a sincere religious belief and whether the governmental action places a substantial burden on the person’s ability to act on that belief. If the plaintiff passes the first two tests, the court must then determine whether there is a “compelling state interest” and whether the governmental action is applied in the least burdensome manner to the religious beliefs.
The RFRA was enacted in the wake of the Native American religious cases to codify the traditional Sherbert Test. According to Govtrack, the bill was sponsored by Rep. Chuck Schumer (D-N.Y.) and signed into law by President Bill Clinton on Nov. 16, 1993. An identical Senate version of the bill was introduced by Ted Kennedy (D-Mass.). The bill passed the House by a unanimous voice vote. Only three senators voted against the bill. They were Jesse Helms (R-N.C.), Harlan Mathews (D-Tenn.), and Robert Byrd (D-W.V.).
The entire text of the RFRA can be read in a matter of minutes. The core of the law is Section 3 which stipulates that the “Government shall not burden a person's exercise of religion even if the burden results from a rule of general applicability” unless the government demonstrates that the burden “furthers a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” In the Hobby Lobby case, it was the second test, that of being “least restrictive,” that the Obamacare mandate failed.
In 1997, the Supreme Court ruled that the RFRA was unconstitutional when applied to the states (City of Boerne v. Flores). As a result, some states have enacted their own religious freedom statutes into state law.
In the majority opinion, Justice Samuel Alito notes that under the federal Dictionary Act, a corporation is treated as a person unless Congress specifies otherwise in a specific law. The RFRA contains no such exception. “The plain terms of RFRA,” he writes, “make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.”
Alito assumes but does not rule that the government has a compelling interest to provide “cost-free access” to contraceptives. It is not necessary to test whether the interest was compelling because the mandate failed the test of the being the “least restrictive” method. This is because the government had already implemented an alternative system for religious nonprofit groups. The mandate could not be the least restrictive method if a less restrictive, alternative method was already in existence.
In contrast to many claims from the left, the ruling does not allow bosses to control the bodies of female employees. Nor does it ban contraceptives or allow corporations to prohibit their employees from using them. It merely holds that the government must allow a religious accommodation for companies that are opposed to providing abortion-inducing drugs.
Alito also writes, “This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.”
“We do not hold, as the principal dissent (Ginsburg’s opinion) alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs,’” Alito continues. “Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose ‘disadvantages . . . on others’ or that require ‘the general public [to] pick up the tab.’”
Anticipating the objections from the left that the ruling will harm women, Alito points out that the effect of the legally required accommodation “on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing” just as women who currently work at religious nonprofits have cost-free access to abortion-inducing drugs and traditional contraceptives.
In the final analysis, the case was not about the availability of contraceptives, or even abortifacient, drugs. It was about who pays for them and the power of government to compel Americans to violate their religious beliefs.