Having Made Our Bed



The U.S. Supreme Court heard oral arguments in Sebelius vs. Hobby Lobby on March 25th [1], the case where the chickens of ignoring the Free Exercise rights of minority or unpopular religions have come to roost. Central to the case is the application of the Religious Freedom Restoration Act (RFRA) [2], which was enacted in response to the Supreme Court’s acquiescence to state power being brought to bear against religious practices in a case called Employment Division vs. Smith [3], decided in 1990.

Smith was a case where two adherents of the Native American Church were fired by a private drug rehabilitation organization because they took peyote sacramentally, as part of their religious practices. When they tried to collect unemployment benefits they were turned down because they had been terminated for work-related misconduct. The Supreme Court found no constitutional violation here because the law against ingesting peyote was a law of general application, and wasn’t enacted for the purpose of curtailing the religious activities of the Native American Church. Nothing was mentioned about what the outcome would be if Prohibition returned, this time without any exceptions being made for the use of wine in the Eucharist. Interestingly, the majority opinion in Smith was written by a “conservative” justice, Antonin Scalia. A dissenting opinion was filed by Justice Harry Blackmun, the justice who wrote the majority opinion in Roe vs. Wade, which was joined by two “liberal” justices: William Brennan and Thurgood Marshall.  

In writing his dissent, Justice Blackmun had this to say: 

“This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State's refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means. 

“Until today, I thought this was a settled and inviolate principle of this Court's First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a ‘constitutional anomaly.’” [citation and footnote omitted]

The Supreme Court was applying a new standard to Free Exercise cases, one that the “liberal” justices found to be objectionable. The new standard was that a law of general applicability, and not specifically directed at a religious practice, will be upheld against one whose religious practice is being curtailed by that law. In other words, the Free Exercise clause of the First Amendment was being reduced to saying nothing more than that one may practice his religion freely until the government says otherwise, as long as the same law applies to everyone.

Almost three years later, Congress enacted the RFRA with the stated purpose of restoring “the compelling interest test” that was in existence prior to the Smith case. Specifically the RFRA says that 

“Government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person --

(1) furthers a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.”

Now comes Sebelius vs. Hobby Lobby, where the Health and Human Services regulation requiring that 
employers who provide health insurance to their employees must also provide contraception coverage in the plan, even abortifacient contraception. Employers with more than 50 employees must provide health insurance, and, thus, must also provide the contraception coverage. While an exception is provided for certain religious entities, there is no exception for ordinary for-profit businesses, even if the business owners have a religious objection to paying for contraceptives, or, as in the case of Hobby Lobby, abortifacient contraceptives. The RFRA will determine the outcome of this case, but the Supreme Court may also return to the pre-Smith “compelling state interest” standard for determining Free Exercise issues.

This time, if what took place at the oral arguments is any indication, it appears that it will be the “liberal” justices who will look more favorably on the government’s action, while the “conservative” justices, including the same Antonin Scalia who wrote the majority opinion in Smith, will be more sympathetic to the religious freedom claim. It is a tall order, after all, to expect even Supreme Court justices to stand on principle where the interests of raw political power are at stake.

But the lesson of those who practice any religion in the United States is manifest. We must stand united and forceful against any governmental encroachment on religious freedom, even with respect to religions and religious practices to which we might be opposed. Any imaginings that would lead one to believe that such encroachments against his own religion are unlikely have been proven fanciful beyond a reasonable doubt.


Jack Quirk