By J. Brent Walker
When the U.S. Supreme Court hears oral arguments on March 25 in the contraception case involving Hobby Lobby and Conestoga Wood Specialties, it will be asked to decide novel and difficult questions concerning the interpretation and application of the Religious Freedom Restoration Act.
Can commercial, for-profit corporations exercise religion? Can the shareholders’ rights of conscience be imputed to the corporation? Can their exercise of religion be “substantially burdened” by objectionable activity provided by an insurance company and chosen by female employees? Does government have a compelling interest in making sure all women have access to preventive health care services, like contraceptives, sufficient to justify that burden?
But this case is not just about interpreting and applying RFRA. One of the more than 80 friend-of-the-court briefs marshals a frontal assault on RFRA’s constitutionality. No matter how the high court interprets RFRA and applies it to the facts in this case, it must not summarily declare it unconstitutional.
This brief — filed by Marci Hamilton, who teaches at the Benjamin N. Cardozo School of Law, on behalf of the Freedom from Religion Foundation and others — contends that RFRA is unconstitutional on its face. The brief mistakenly argues that RFRA violates the First Amendment’s ban on the establishment of religion. To the contrary, RFRA is a permissible accommodation of the exercise of religion; it is not an unconstitutional advancement of religion. As the Court has made clear, there is “room for play in the joints” between what the Free Exercise Clause requires and the Establishment Clause forbids. Hundreds of religious exemptions populate federal and state law strengthening religious liberty without impermissibly establishing religion.
If Congress can grant religious exemptions on a case-by-case basis, what is wrong with making these accommodations, as it did in RFRA, all at once? In fact, one could argue that this wholesale approach to accommodation is even less likely to risk establishing religion than the case-by-case retail version. The latter creates outright exemptions from government regulation; RFRA does not.
Instead, RFRA provides a balancing test that is applied to the facts of each dispute: When the government substantially burdens religious exercise but can show that it is advancing a compelling interest, it can win every RFRA claim that comes to court. It is worth noting that when the Supreme Court struck down RFRA as applied to the states on federalism grounds in City of Boerne v. Flores (1997), only Justice John Paul Stevens, now retired, thought that RFRA violated the Establishment Clause.
The brief also argues that RFRA is flawed because it violates the separation of powers doctrine. This is wrong, too. In passing RFRA, Congress was not seeking to exercise judicial power or trying to tell the courts how to interpret the Constitution. It was simply seeking to protect by statute the exercise of religion in a way that the Supreme Court refused to do.
Constitutional rights establish a floor; they do not erect a ceiling. A co-equal branch of government is free to ratchet up rights ensured by the Constitution. Congress has the authority, under the necessary and proper clause of the Constitution’s Article I, to regulate the ways in which the federal government and its agencies deal with religious liberty issues. Indeed, the Court has already applied RFRA to the federal government in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2006), albeit without specifically addressing the constitutionality of doing so.
Another brief also raises a constitutional issue, focusing specifically on how RFRA is applied in this case. This brief was filed on behalf of church-state scholars and authored by Brigham Young University Law School professor Frederick Mark Gedicks. He argues that if the Court were to allow owners of a for-profit corporation to shift the burden and cost of protecting their own conscience — in this case, forcing female employees to forgo or purchase for themselves contraception services — it would, in that narrow circumstance, violate the Establishment Clause.
This argument has some merit. The Court struck down a state law in Estate of Thornton v. Caldor, Inc. (1985) that gave workers an absolute right to have their Sabbath accommodated in the workplace, because the law would effectively require other workers to bear the burden of covering the accommodated workers’ shifts. In Cutter v. Wilkinson (2005) — a case interpreting the Religious Land Use and Institutionalized Persons Act (legislation similar to RFRA) — the Court reaffirmed this prohibition on forcing third parties to bear the burden or cost of someone else’s religious choices. Thus, in addition to being arguably unfair to hire employees without regard to their religion and then impose on them the consequences of the religious compunction of the employer, it also may violate the First Amendment’s ban on the establishment of religion.
As the leader of the broad coalition that urged passage of RFRA, the Baptist Joint Committee has a special stake in preserving its continued vitality. This means not only making sure the act is applied in ways that both protect the rights of religious claimants and fairly treat third parties who are detrimentally affected; it also impels us to stand against broad-brushed constitutional challenges to RFRA’s very foundations and be wary of ways in which it might violate the Establishment Clause as applied in a given case.