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Crafting Free Exercise of Religion

by Paul Creech on Tuesday, July 1, 2014

Lots of people have asked me about the Hobby Lobby decision recently handed down by the United States Supreme Court relating to the regulatory mandate created by the Secretary of Health and Human Services, under her authority from the Affordable Care Act to regulate the services required in employer offered health care plans, that required employers to pay for plans that carry free-to-the-employee contraceptives, among them, four that are controversially known as the morning-after abortion pill.

That is about how are I get before people give what they heard on MSNBC, Fox News, on the radio, Twitter, or from someone raising political money off the never ending umbrage machine of modern American politics. Every horrible thing that you heard will happen will very likely not happen.

Nutshell: the case was about what the word person means in a law protecting religious freedom. The law that says what the word person means when it is used in laws says it means corporations as well as individuals. The Court found that the word person included closely held corporations, like Hobby Lobby. Congress can change either law. Congress created one law because they thought the Supreme Court messed up in 1990 when in narrowed the protections given to some Native Americans to smoke mind alternating hallucinogens as part of their religion. Nothing in the case interpreted or changed our understanding of the Constitution.

A Brief History of the Law Behind Free Exercise of Religion in the United States:

The Constitution of the United States grants powers to the Government, and then limits those powers to preserve inherent and natural rights in the states and in the individual (the source of all power). One historically important individual freedom long recognized in America is that people are free to practice the religion of their choice. This doesn’t simply mean that a person can believe whatever they wish in their own heads–and that’s their business, but that individuals possess a right to perform actions in the exercise of their religious beliefs. Such actions (many of which are prohibited in different countries around the world) include the possession of religious literature, the holdings a meeting, and performance of rituals such as baptism, sacrament, and marriage. These actions cannot be regulated or prohibited by the Government (or can they?). This freedom was articulated in the Free Exercise Clause of the First Amendment of the Bill of Rights. It is related to freedom of speech, and is paired with the Establishment Clause, which restricts the Government from adopting an official religion (among other things).

The first time the Supreme Court of the United States interpreted the meaning of the Free Exercise Clause was in 1867, affirming the conviction of Brigham Young’s secretary on polygamy charges in a coordinated test case to decide the legality of the Mormon’s polygamy practices. The Court decided that Government can legislate against action (in this case, the practice of plural marriage), but not opinion (the belief that plural marriage is part of God’s plan)—seeming to remove any articulable right from the Free Exercise Clause. However, the decision spends considerable time recounting that plural marriage was a long standing common law crime dating back to King James. The concern was that protecting every action any religion called a practice of their faith would lead to absurd results: if religious sect were to have revelation that called them to the murder of babies born with red hair, they could be exempted from criminal prosecution by calling those acts the exercise of religion. Clearly, the right to exercise of religious beliefs, like all other rights, must yield in the face of some Government interests. Whether those interests are preserving singular marriage and the fate of western society, or protecting its citizens–even red headed babies, from murder.

In the latter half of the twentieth century the Supreme Court developed a strict scrutiny test for Free Exercise cases. They decided that the First Amendment’s Free Exercise Clause requires accommodation of the religious conduct except where the Government could show a compelling interest and that no less burdensome means to achieve that end exists. The base line is that Government must accommodate religious conduct. If it wants to restrict that conduct, then it is up the Government to prove it has a compelling interest, and prove that there is not a less burdensome way to further the same goal (even if not as effectively or completely as the challenged law).

In 1990, the Supreme Court scrapped that test in a case about Native Americans not getting unemployment benefits after being fired for smoking peyote, which they claimed was action that constituted the exercise of their religion. Under the strict scrutiny test, after it was established that the smoking of peyote is an exercise of the religious beliefs of these Native Americans, the Government would have to prove that it had a compelling interest in keeping people from consuming peyote and that there was not a less burdensome way to achieve that end. However, the Court decided that when laws are created that are not intended to target religious groups, neutral laws of general applicability, that the Government doesn’t have to accommodate religious exercise or prove a compelling interest.

In 1993, in response to change of the Court’s test, Congress passed and President Clinton signed the Religious Freedom Restoration Act (RFRA), which grants persons an exemption from any rule or law that substantially burdens a person’s exercise of religion. To overcome this exemption the Government must prove that the application of the rule against that person is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest. In 2000, Congress broadened the test create a looser definition of exercise of religion by preventing the Government from arguing that the practice at issue was not compelled or central to particular system of belief. At the same time Congress removed any reference to the First Amendment, intending the courts to interpret the law without reference to the case developed limiting the Free Exercise Clause.

The Hobby Lobby case:

The Hobby Lobby decision answered one question: is a for-profit corporation a person under the RFRA. Generally, corporations are considered people with rights. Various constitutional protections are enjoyed by corporations, including: freedom of the press, freedom from unreasonable search and seizure, and freedom from uncompensated takings. A corporation is a person in every criminal law code in the United States. Congress defined words in the Dictionary Act, so Courts do not have to guess about what Congress means when it writes laws and doesn’t include definitions. Under the Dictionary Act, the word person includes corporations, companies, firms, associations, partnerships, societies, as well as individuals. When the word person is used in a law, and it is not a defined term in that law, the words are presumed to have the meaning given them in the Dictionary Act. Therefore, the only way person does not mean a corporation under the RFRA is by a contextual argument that Congress clearly intended to use another definition that excludes them. The Supreme Court has heard RFRA cases from corporations before. These have been non-profits corporations who brought free exercise claims before the Court, and no one argued that corporation was not a person under RFRA. In the Court’s view, the Government must show that Congress clearly intended a for-profit company not to be a person under the RFRA for it to prevail in the case.

The focus of the dissent in Hobby Lobby is focused on arguing that a for-profit corporation, as opposed to a non-profit corporation cannot exercise sincerely held religious beliefs. The majority believes that a corporation can be used for any lawful purpose, including running a business that has religious purpose or is self-limited by religious beliefs—and is not limited to money making, but it can have a moral compass. A corporation that is a public company would have more difficult time, practically speaking, exercising religion because of how difficult it would be to get the stockholders of a publicly traded corporation to agree to run its business under the same religious beliefs. The Court limited its decision to persons like the plaintiffs in the case before it, holding that closely held for-profit corporations can have sincerely held religious beliefs, and the exercise of those beliefs are protected under the RFRA.

The Hobby Lobby decision did not interpret the First Amendment’s Free Exercise clause; it interpreted a federal statute that grants accommodation to rules (either other federal statutes or regulations created by federal agencies as in this case) that burden exercise of religion. That statute, the RFRA was created to grant a greater right than existed in the Constitution, in response to the Supreme Court limiting interpretation of the Constitution that would narrow a person’s right to accommodation to laws of general applicability on the basis of the free exercise of religion.

After deciding that RFRA was not drafted to exclude for-profit corporations (regardless of whether it should have been), the Court decided that there was substantial burden on Hobby Lobby if they failed to comply with the contraceptive mandate rule created by the Secretary of Health and Human Services (based on her authority to create regulations about what a health care plan must cover in the Affordable Care Act). The Court found that $475 million in fines by providing health coverage without the four contraceptives at issue (or $26 million in fines if they just dropped all the health care coverage for employees) that would be leveled against Hobby Lobby each year that it failed to comply is a substantial burden.

The Court rejected the dissent’s attacks on Hobby Lobby’s application of its religious beliefs, stating that the dissent cannot render the exercise of religion invalid by arguing that the religious tenant is flawed or subject to philosophical, religious, or scientific challenges. Echoing an earlier case about a Jehovah’s Witness steel worker whose job was changed to make steel that was used for tank turrets, which he found morally objectionable, the Court stated that it is not its job to say whether the line of reasoning drawn between the religious belief and the act at issue is reasonable. It was not going to closely examin the logic of the connection between making steel for tank turrets and killing people with tanks or paying for health insurance that covers contraceptives that it believes perform abortion and performing an abortion with a rigorous reasonableness test.

The Court did not decide whether the Government’s interests in providing certain types of controversial contraceptives is a compelling government interest and just assumed it was for the sake of argument. Instead, the Court focused on whether the regulatory mandate was the least restrictive means to further the goal of providing access to these drugs for women. The second part of the analysis was easy for the Court because the Department of Health and Human Services had already exempted over ten million people from the requirements. The Government decided not to provide to the Court the cost of the contraceptives, how many women use the contraceptives, and the availability of the contraceptives outside of a health care plan. Further, the Government had already answered the question as to religious groups seeking RFRA exemptions. The accommodation put in place under RFRA for religious groups still allows the employees to get the contraceptives without cost, transferring the cost to the insurance company without allowing the insurance company to share that cost back to the non-profit. The Court says this, or another accommodation would be less restrictive than a program that gives closely held corporations the choice of paying hundreds of millions of dollars in fines (or dropping all of their employees’ health coverage and paying tens of millions of dollars in fines) or paying for what it believes to be murder.

Congress created the RFRA, and Congress can change it. The Court did not reach any Constitutional challenges to the contraceptive mandate having resolved the challenges on statutory grounds.

These materials have been prepared for general informational and entertainment purposes only and are not intended as legal advice.

Paul Creech
Paul Creech is an attorney living in Houston, Texas. Paul has baccalaureate degrees in philosophy and political science from Utah State University, and a juris doctorate degree from Houston College of Law. He is a former U.S. Marine. Besides the law, Paul's interests include sports, art, and food.