Professor Marci Hamilton, Zubik and RFRA: A Short Lesson in Overreaching, Tyranny, and Ineffectual Government, Hamilton and Griffin on Rights

The oral argument in Zubik v. Burwell was yet another lesson that the Religious Freedom Restoration Act (RFRA) is fundamentally an unworkable and unreasonable statute that trenches on the separation of powers and erases the separation of church and state.  It tempts Justices to be super-legislators, believers tyrants, and the federal government a bowl of mush.  The bottom line by the Solicitor General representing the federal government defending the existing exemption was that we need a “sensible balance.”  Sadly, RFRA is intended to push the envelope to the unreasonable accommodations a rational legislator would reject.  And that should be no surprise.  It was initiated and pushed hardest by conservative Christian evangelicals like the Christian Legal Society intent on invoking their faith to refuse to rent apartments to unmarried couples or single mothers, a category they later generously expanded to include gay couples.

The Little Sisters of the Poor, the University of Notre Dame, and others are making the hard-to-say-with-a-straight-face argument that if they fill out a form saying they don’t believe in birth control and the plan administrator provides cost-free contraception to their female employees their faith is compromised.  Not because they have to use contraception themselves, but because they are part of the chain reaction that results when one of their adult female employees chooses to use birth control prescribed by their doctors.   (Speaking on behalf of every one of those women, let me just say: “Mind your own business.”)  Their “complicity” argument is mind-blowing, because on their reasoning, thepaychecks they pay these women, who then purchase contraception, make them just as complicit!   So what are they doing hiring women in the first place?!  And what’s next?  You can’t work for them unless you install a camera at home to track your contraception use?  The slippery slope is treacherous.

Justices as Super-Legislators

Repeatedly, Justices pointed out that no one can get an exemption from the law without telling the government they need it, and that the First Amendment cases never held that such a notification could be a “substantial burden.”  Justice Sotomayor kicked off the questions with this very point and tried to box in Petitioners’ lawyer Paul Clement repeatedly.

She was on solid ground pointing out that the Supreme Court had not identified the supposed burden in this case as the sort of burden that triggers free exercise protections.  True enough, but the bottom line is that it just doesn’t matter what the Supreme Court has said before on free exercise.  This is a statute that does not “restore” anything but rather hands religious entities the standard they were never able to persuade the Court to adopt.  Therefore, Clement’s slick answer each time was that, well, that case may have said that, but we need to focus on the RFRA machinery: “substantial burden,” “compelling interest,” and “least restrictive means” analysis.  (Not in a single First Amendment free exercise case has the Supreme Court employed the RFRA standard, even in a case involving a discriminatory statute.  I’m not going to argue this again; it is the simple truth, as I explain here, in my Hobby Lobby amicus brief.)

In short, this case is the best example yet that the second “R” in RFRA really stands for “reversal.” 

Several Justices pointed out that pro-RFRA advocate Professor Douglas Laycock in a widely circulatedamicus brief warned of disaster if the Court followed the reasoning of the religious nonprofits.  It is rich to hear Laycock warn everyone about the perils of RFRA; he who has been surprised or disappointed or “shocked!” when the RFRAs became the go-to tool to discriminate against the LGBTQ community, as though he was unaware that the Christian Legal Society started this game to engage in fair housing discrimination.  In response to the LGBTQ issues, he said that everyone was being unreasonable on both sides.  No. What is unreasonable is just RFRA itself, and it is hypocrisy now to be shocked that this extreme standard could be applied in an extreme manner by extreme believers.   Every warning in the world from every law professor will not make the sow’s ear of RFRA into the silk purse of First Amendment free exercise wisdom.

So what does it mean if the Supreme Court’s free exercise cases are reversed by the Supreme Court’s interpretation of RFRA?  It means that the Justices and Congress need to switch buildings.  First, it means that Congress enacted a law that reverses Supreme Court cases, and the members should don black robes and find a gavel so they can start scanning the Supreme Court Reports for constitutional cases to reverse.   That was what the Court said in Boerne v. Flores, though it seems to have forgotten over half of that opinion.

Second, many of the statements from the conservative members of the Court portrayed them as persuaded they have a lot better solutions to solving health care problems and women’s need for reproductive health care than Congress will ever dream of.  Or, in other words, they are a lot smarter than members of Congress.   It was painful to listen to Justice Alito attacking the federal government for not thinking of setting up a wholly separate system so women have to go through two applications, or for Justice Kennedy to elicit that the “answer” to the supposed burden on religious entities is for the government to pay for every woman’s contraceptive coverage, or for Chief Justice Roberts to talk about “hijacking” nonprofits’ health care plans as though they belong first and foremost to the nuns and the employee beneficiaries are serfs who should be grateful for each crumb of coverage.  RFRA invites them to be policymakers and Justice Alito has embraced this role with gusto in Hobby Lobby, Holt v. Hobbs, and now the Zubik oral argument.  As I explained in an amicus brief for the visionary Rep. Bobby Scott, RFRA invites the Justices to view themselves as the ultimate policymakers, which is a role the Court proved itself to be unsuited for in the Lochner line of cases. Last I checked, the members of the Supreme Court are unelected and utterly unaccountable.  It is offensive to hear them asserting themselves as the ultimate arbiters on public policy.

Believers as Tyrants

The catnip of RFRA persuades believers that there is a beautiful world where they can operate without the burdens of the law.  No matter what the issue, no matter who is affected, they have a “right” to go to federal court and demand an accommodation where: (1) one was never envisioned before a la Hobby Lobby or (2) when the existing accommodation makes them, gasp, fill out a form, a la Zubik.   The 90% of women who use birth control, including the many who work for these very organizations, don’t have such a “right” because it’s not the government burdening them.  It’s the believers, and believers can smugly insist on their “rights” while those they deprive and judge are left defenseless.   RFRA trumps civil rights of employees, and if the Court sides with the religious nonprofits, it is one short step to watering down Title VII and the Civil Rights Acts based on race, nationality, and alienage.  What is the least restrictive means of accommodating the white supremacist bar owner?  Have minorities walk across the street to another bar.

Federal Government as a Large Bowl of Mush

Most disappointing at the Zubik argument was the failure of the Solicitor General to provide the context and meaning sorely needed on these issues in this era.  There was a time when it seemed like President Obama would restore the Establishment Clause and the separation of church and state.  Instead, his Department of Justice has pulled its punches as it litigated the RFRA cases.   A clarion voice of reason and a unifying moral vision is needed to lead this country against faith-based terrorism and the pervasive scourge of child sex abuse in religious organizations.  Instead, we get a federal government that seems afraid of its own shadow.

What is at stake here?  Not just cost-free, seamless contraception for poor women or the religious liberty of employees as opposed to employers, but how about the employers who will refuse to fund transfusions for faith?   The same groups before the Court in this case will, on precisely the same reasoning, refuse to subsidize embryonic stem cell treatments, regardless of the employees’ suffering, or HIV treatment, in judgment of gay men; or how about the faith-healers who will refuse to subsidize vaccinations or any medical care for their children?  This is where their complicity argument leads, but none of this inevitable reasoning crossed the Solicitor General’s lips.

He should have pointed out that the end result of religious triumphalism and the disdain for law is tyranny.  We have a fresh example in the FLDS, and the ultra-Orthodox Jews especially when it comes toeducation and the misuse of funding for schools.     It generally means women and children suffer.   It is no accident Hobby Lobby and this case result in burdens on women, who are boxed into a corner.

Those burdens appear to be trivial to the conservative members of the Court, but one can only hope they matter to whoever chooses the next Supreme Court Justice.


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