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Professor Marci A. Hamilton, Religious Freedom Restoration Act

The Consequences of RFRA and the Supreme Court’s Hobby Lobby Decision: Battles Between Believers, Legal Swiss Cheese, and Protests, Professor Marci A. Hamilton, Hamilton and Griffin on Rights

July 31, 2014

Welcome to the post-Hobby Lobby world, where religious believers square off to gain the advantage of the extreme rights accorded by the Religious Freedom Restoration Act (“RFRA”).

RFRA is a black box that only reveals its contents as believers invoke it and their cases unfold. Without a doubt, the most eye-opening for the country so far was the Burwell v. Hobby Lobby decision. As everyone who reads a newspaper, owns a television, or has a smartphone knows by now: the Supreme Court ruled that RFRA grants the owners of billion-dollar industries like the arts and crafts chain of stores, Hobby Lobby (and every other corporation), the right to cut back on employee health benefits based on their religious beliefs. RFRA enabled the Green family to reject mandated contraceptive coverage under Affordable Care Act for their thousands of female employees.

The Tip of the Tip of the Iceberg

Apparently, they are the tip of the iceberg of religious owners who might well step up to the RFRA plate and bat away their female employees’ health coverage. Dozens of organizations had already filed for relief from the contraception mandate even before the Court issued its ruling on June 30.

The contraception iceberg, though, is just a tip on the eventual enormous iceberg of claims never before brought under RFRA until the Court rendered this ruling unleashing RFRA.

RFRA Has the Power to Turn All Laws into Swiss Cheese

RFRA covers all beliefs, and the First Amendment does not permit the courts to favor some believers over another. That means the RFRA-unleashing arguments that empowered the Green family can be invoked to empower believers with the opposite views. For example, the Satanic Temple, Conservative and Reform Jews, Methodists, and American Baptists have now staked out the argument that their religious beliefs conflict with sweeping restrictions on abortion.

I am curious what the pro-lifers will do with such claims. Do they defend the abortion restrictions they paid for with lobbying and, therefore, argue that RFRA should be watered down for these believers? Or do they stick with a strong RFRA theory, and watch their anti-abortion accomplishments dismantled by the majority that disagrees with them on a woman’s right to make her own reproductive choices?

What every legislator and American should understand is this: what happens when conflicting believers invoke RFRA in the same arena is that our duly enacted laws become swiss cheese.   No rational system of law, in a country where the vast majority of citizens are believers, can or should encourage believers to roam around and pick and choose the laws that will apply to them. That is what RFRA does and the Supreme Court’s First Amendment doctrine never did, as I discuss in my forthcoming book, God vs. the Gavel: The Perils of Extreme Religious Liberty

A Month of Protests and Protesters

In the month since the Supreme Court announced its decision in Hobby Lobby, there have been a number of protests and protesters across the country, mostly in front of Hobby Lobby stores. Cities include Albequerque, NM; Aurora, IL; Burbank, CA; Chattanooga, TN; Des Moines, IA; Duluth, MN; East Haven, CT; Edmond, OK; Huntsville, AL; Kennewick, WA; Laguna Niguel, CA; Lawrence, KS; Madison, WI; Mishawaka, IN; Mobile, AL; Phoenix, AZ; Rancho Cucamonga, CA; Santa Barbara, CA; South Jordan, UT; Toledo, OH; Topeka, KS; Totowa, NJ; Tulsa, OK; Warwick, RI; Wichita, KS; and Woodbury, MN. See below!

It is a creative group. Signs included the following sayings: “Michael’s Accepts Hobby Lobby Coupons” “572 Stores, 23,000 Employees, $3.3 Billion in Revenue, 1 Religion?” “Bigotry Is Not a Hobby” “Hypocrisy Lobby Invests in Birth Control.” “Hobby Lobby Stop the Madness.” “Don’t Tread on My IUD.” And even a bride and groom holding, “Yes, We Plan.”

The anti-Hobby Lobby protests are evidence of a grassroots backlash that unites a confluence of interests: women’s civil rights, employee rights, and rights to reproductive choice. The protests so far have been organized at least in part by local chapters of the National Organization of Women; Planned Parenthood supporters; local union shops; and concerned individuals. Interestingly, the largest was the most recent in Laguna Niguel this week, at which dozens protested at the Hobby Lobby store’s entrance.

It is highly unlikely this is the end, because the more Americans that learn of the impact of the Hobby Lobby decision on potentially millions of ordinary employees, the more outrage and disgust there is.   It is reminiscent of the early days of the pro-life movement, before its orchestration and political organization.

Many of us thought the battle for women’s rights and reproductive choice were over. Not so. They will be unless women, pro-choice groups, civil rights groups, unions, employee organizations, and many others speak up now.