by Leslie C. Griffin, William S. Boyd Professor of Law at UNLV Boyd School of Law
“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,” wrote Justice John Paul Stevens in City of Boerne v. Flores, the 1997 case that invalidated RFRA for state governments. RFRA still prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” Congress drafted RFRA to express its dissatisfaction with the Supreme Court’s important ruling in Employment Division v.Smith that all citizens must obey neutral laws.Smith rejected the argument that religious citizens are constitutionally entitled to disobey the law. In contrast, “RFRA establishes an across-the-board scheme that deliberately singles out religious practices, en masse, as a congressionally favored class of activity,” as Cardozo law professorMarci Hamilton argued in briefing Boerne.
Justice Stevens and Professor Hamilton were right. The most fundamental Establishment Clause rule is that the government may not prefer religion over irreligion or non-religion. RFRA, however, “privileges religion over all other expressions of conscience.” Unfortunately, in 1997 only Stevens and Hamilton recognized the establishment problems with RFRA, which continues to bind the federal government.
Those problems were confirmed by the Tenth Circuit’s decision in Hobby Lobby, which exempted the large arts and crafts chain store from the contraceptive mandate of the Affordable Care Act without mentioning the Establishment Clause. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Because Hobby Lobby’s Christian owners believe that contraception causes the death of a human embryo, they want to deny contraceptive insurance to their employees. The Tenth Circuit ruled that RFRA grants the employers that right.
Now that the Supreme Court has decided to hear Hobby Lobby, law professors Micah Schwarzman, Nelson Tebbe and Richard Schragger are bemoaning the absence of an establishment argument from the parties’ briefing. According to the professors, “the Establishment Clause prohibits religious accommodations that impose burdens on third parties.” Or, more specifically, the government may not exempt Hobby Lobby from the mandate because that accommodation “will seriously burden precisely those women who are [the law’s] intended beneficiaries.”
The professors’ establishment analysis is too narrow. It leaves them arguing about what a burden is, how substantial it is and whether cost-shifting affects the burden analysis. If the burden on women is indirect or small, perhaps, on their theory, the accommodation of Hobby Lobby is not really an establishment of religion. In contrast, the Stevens/Hamilton argument—no preference for religion—more precisely captures the meaning of the constitutional clause and the problems with the statute.
RFRA clearly prefers religion to non-religion. With RFRA’s help, a small Brazilian churchwhose members use hallucinogenic drugs in their religious rituals was exempted from the Controlled Substances Act. In contrast, cancer patients desiring to use medical marijuana enjoy no such exemption from the drug laws, and marijuana churches claiming RFRA’s protection are usually rejected as insincere. As Professor Hamilton argued in her Boernebriefs, such outcomes unconstitutionally “privilege religion over all other expressions of conscience.”
The other professors seem surprised that the Solicitor General did not raise an establishment defense in Hobby Lobby. From the perspective of the Establishment Clause, however, the government’s conduct was predictable. The state and federal governments frequently protect religious majorities at the expense of women and religious minorities. Because, as Professor Hamilton explained in Boerne, “union of the federal government and organized religion is the ‘definition of tyranny’ that the Establishment Clause was enacted to prohibit,” it is unsurprising if both the legislative and executive branches are blind to such tyranny.
The worry for now, with Justice Stevens retired from the Court, is that no current Justice will recognize that RFRA has provided churches, as well as numerous religious organizations and now, possibly, secular for-profit companies “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.”