Hobby Lobby: Does RFRA violate the Establishment Clause?

“He misses that conservatives have been hostile to Establishment Clause since Rehnquist.  Obama backed it till he became Pres.  We need politicians and Justices to start serving the Constitution and the people and stop mindlessly pandering to religion. And, yes, RFRA violates the Establishment Clause.” – Professor Marci A. Hamilton


In the 1997 case Boerne v. Flores, where the Supreme Court decided that the Religious Restoration and Freedom Act exceeded Congress’ Section 5 enforcement power as applied to the states, Justice John Paul Stevens issued a little remarked concurrence in the result. Justice Stevens wrote:

In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985).

Thirty years ago, Justice Stevens’ view would have been unremarkable, as it expressed the conventional view of the separation of church and state under our system of government. President John F. Kennedy famously pronounced “I believe in an America where the separation of church and state is absolute … , where no church or church school is granted any public funds or political preference.” How we have strayed from this core principle was well exemplified in yesterday’s oral argument in the Hobby Lobby case.I’ll explore this point on the flip.


In reaction to yesterday’s argument, Ruth Marcus wrote:

[I]t is possible to imagine a for-profit corporation with an unquestionably religious outlook. At the argument, Justice Samuel Alito, citing a new Danish law, asked about banning kosher or halal butchers on the grounds that their practices are inhumane. I’m skeptical of the religious corporation, but I’ve got to admit: That’s one tough hypothetical.

Marcus’ observation springs from the following exchange at oral argument:

JUSTICE ALITO: What about the implications of saying that no for-profit corporation can raise any sort of free exercise claim at all and nobody associated with the for-profit corporation can raise any sort of free exercise claim at all? Let me give you this example. According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane. Now, suppose Congress enacted something like that here. What would the — what would a corporation that is a kosher or halal slaughterhouse do? They would simply — they would have no recourse whatsoever. They couldn’t even get a day in court. They couldn’t raise a RFRA claim. They couldn’t raise a First Amendment claim. [Emphasis supplied.]

After a meandering colloquy, the solicitor general finally and reluctantly articulates what once was an uncontroversial view of the separation of church and state:

I think our response is what the Court said in Part 3 of the Lee opinion, which is that once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for-profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial sphere.

But Verilli quickly pivots (wisely in my opinion) from this once unremarkable proposition to argue about the impact on others, in this case the female employees of Hobby Lobby:

it will be the first time under the Free Exercise Clause or under RFRA in which this Court or any court has held that an employer may take — may be granted an exemption that extinguishes statutorily guaranteed benefits of fundamental importance. Lee came to exactly the opposite conclusion with respect to Social Security benefits, that you — that it was imperative that the employee’s interest be protected. And that is the fundamental problem with the position that my friends on the other side raise here, that they leave the third-party employees entirely out of the equation.

Leaving aside the absurdity of comparing a secular for-profit corporation engaged in theprocurement and sale of tschotkes and craft goods from slave labor and abortion promoting China (Hobby Lobby) to a butcher expressly dedicated to following religious dietary laws (the kosher butchers of Alito’s example), the importance of the principles enunciated in United States v. Lee were passed over almost without comment by the conservative justices.A little background on the Lee case is in order. Lee was a member of the Old Order Amish, who believe that there is a religiously based obligation to provide for their fellow members the kind of assistance, in the manner of Social Security. He asserted that paying Social Security taxes violated his First Amendment free exercise of religion rights and those of his employees.

The Lee Court rejected the claim. Importantly, the Lee Court enunciated the following principles:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees. [Emphasis supplied]

Interestingly, Justice Stevens, who participated in both the Lee and Boerne decisions, expressed his views in a remarkably consistent and intellectually honest way. First, he rejected the idea that the government truly had a “compelling interest” in collecting Social Security taxes from the Amish, noting that the net effect would probably save the government money. Instead, Justice Stevens rejected the idea of religious accommodation in toto:

The Court’s analysis supports a holding that there is virtually no room for a “constitutionally required exemption” on religious grounds from a valid tax law that is entirely neutral in its general application. 3 Because I agree with that holding, I concur in the judgment. [. . .]In my opinion, the principal reason for adopting a strong presumption against such claims is not a matter of administrative convenience. It is the overriding interest in keeping the government—whether it be the legislature or the courts—out of the business of evaluating the relative merits of differing religious claims. The risk that governmental approval of some and disapproval of others will be perceived as favoring one religion over another is an important risk the Establishment Clause was designed to preclude.[Emphasis supplied.]

It is remarkable that this once traditional and dominant view of the separation of church and state no longer is even respectable enough to be articulated in our Supreme Court.Something important has been lost to us.

I’ll be writing more on Hobby Lobby for Sunday.