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