The Supreme Court’s decision, at the end of its most recent term, in the case of Burwell v. Hobby Lobby Stores, Inc., has ignited a storm of controversy out of all proportion to its rather minor practical significance. The decision’s critics appear to consider it a major assault on women’s “reproductive freedom,” to use a common buzz phrase. Its defenders see it as a milestone in the protection of religious liberty.
They’re both wrong. The critics are wrong because the decision in the Hobby Lobby case — in which a commercial employer sought a religious conscience exemption from the Affordable Care Act’s requirement that employer-provided health coverage include coverage for contraceptive services at no extra cost to the employee – ultimately turned on the ease with which the government could assure the employees access to the mandated coverage without infringing the employers’ religious liberty. The decision’s defenders are wrong if they believe that the case signals any diminution of the Supreme Court’s ongoing hostility to claims for infringement of the right to the free exercise of religion. Indeed, the Hobby Lobby case was not a constitutional case at all. It involved, rather, the interpretation of Congress’s intent in passing the Religious Freedom Restoration Act (RFRA).
Advocates of religious liberty like to refer to the Free Exercise Clause as the First Freedom because it comes first in the text of the First Amendment. Unfortunately, any notion that its placement signifies its importance in the eyes of those charged with upholding it is wishful thinking. In recent decades, as free speech rights have been expanded to a level unknown elsewhere in the industrialized world and a right of privacy not specified in the constitutional text has emerged from its penumbral emanations to dominate even the judicial confirmation process, judicial protection of religious liberty has grown ever weaker.
Why has Free Exercise become the step-child of constitutional liberty? There’s no single obvious answer, and I suspect that several factors have come into play. The increasing secularism of American society is one factor, and the inherent tension between the First Amendment’s two religion clauses – the Free Exercise Clause and the Establishment Clause — is another. Perhaps the most important factor, though, is the most obvious. Most Americans support religious freedom in the abstract but are less enthusiastic when confronted with specific examples. It is in the nature of religion that practices that may be central to the adherents of a particular faith can appear trivial — and thus easily subordinated to other considerations — to those who do not share that faith.
A little historical perspective might be helpful. Like the rest of the Bill of Rights, the Free Exercise Clause was initially intended to constrain only the federal government. Only after the Civil War and the passage of the Fourteenth Amendment did the notion of constraining state action take hold, and only in the twentieth century was it authoritatively established that the Fourteenth Amendment bound the states to the various provisions of the Bill of Rights.
Beginning in the 1960’s, several cases decided by the Supreme Court applied to Free Exercise claims a balancing test comparable to those used for other First Amendment rights. Among those Free Exercise cases were Sherbert v.Verner, decided in 1963, which held that a person’s refusal to accept a job requiring work on his Sabbath could not be a basis for denying him unemployment benefits; and Wisconsin v. Yoder, decided in 1972, which held that the State could not compel the Amish to send their children to high school, which would be a violation of their faith. The basic rule, as inferred from these and other cases, was that a claim of exemption based on a sincere religious belief would prevail if the requirement in issue would be a substantial burden on a person’s religious freedom, unless that requirement served a compelling governmental interest and was the least restrictive means of serving that interest.
In a 1990 case called Employment Division v. Smith, the Supreme Court suddenly reversed course. The Court’s decision in that case, written by Justice Scalia, effectively eviscerated the Free Exercise Clause, holding that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability.’ According to that decision, “a State would be ‘prohibiting the free exercise [of religion]’ if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display.” As long as the conduct in issue would be equally forbidden if done for completely non-religious reasons, the court held, then the Free Exercise clause would not be violated.
Not surprisingly, the Smith decision caused uproar at the time. Its drastic curtailment of constitutional protection for religious activities caused alarm across a diverse assortment of religious communities. In response to this widespread concern, Congress overwhelmingly passed the Religious Freedom Restoration Act (RFRA). As subsequently clarified, the RFRA provided that any requirement that substantially burdened a person’s sincere religious belief could be justified only if that infringement served a compelling governmental interest and was the least restrictive means of fulfilling that interest. Simply put, Congress, in the RFRA, sought to return Free Exercise jurisprudence to where it had been before the Smith decision.
The Court, however, was not about to allow Congress to usurp what it saw as the judiciary’s prerogative to determine the scope of constitutionally protected religious freedom. In passing RFRA, Congress had relied on its enforcement power under Section 5 of the Fourteenth Amendment. In City of Boerne v. Flores, the Court rejected that source of authority, holding that Congress did not have the power to compel the States to accommodate a religious practice not protected by the Constitution. “Congress […] has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” Since the Constitution, as interpreted by the Court, did not require the States to grant religious conscience exemptions to neutral laws of general application, Congress could not compel them to grant such exemptions.
By its decision in the City of Boerne case, the Supreme Court effectively blocked any attempt to protect religious minorities from State laws or regulations impinging on their religious freedom. It could not, however, prevent Congress from exercising its authority to regulate the functioning of federal agencies. Congress could not, according to the Court, create a constitutional right, but it could obviously create a statutory right, and it did so by adopting the RFRA. The application of RFRA to the Affordable Care Act (a/k/a Obamacare), a federal program, was the primary issue in Hobby Lobby.
The Hobby Lobby case also presented a threshold issue that has surprisingly received a great deal of attention in the weeks since the decision was handed down. In its decision, the Court upheld the right of a business corporation to assert a claim under the RFRA. Critics of the Court’s decision have insisted that a business corporation, as an artificial entity, cannot claim a religious conscience exemption, but the basis for that position is murky. It has long been settled law that a corporation is a person within the meaning of the Bill of Rights and the Fourteenth Amendment and can invoke constitutional rights. Would anyone argue that the New York Times, because it is a corporation, should be precluded from vindicating its right to freedom of the press?
Hobby Lobby is a closely held corporation whose principals are in agreement on the religious issues involved in this case. (Whether a publicly traded corporation could also make such a claim was not before the Court and was therefore not addressed.) Justice Ginsburg in her dissenting opinion, joined by Justice Sottomayer, argued: “By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations.” Why a corporation’s principal, who could assert a Free Exercise claim as a sole proprietor, should be required to give up that right in order to gain the liability protection and other benefits of the corporate form, does not clearly appear. It’s worth noting that only two of the dissenting Justices in Hobby Lobby held that a corporation could not claim a violation of its right to free exercise of religion. The other two dissenters (Breyer and Kagan) held that Hobby Lobby’s Free Exercise claim could be rejected on the merits without reaching the issue of whether a corporation has the right to raise such a claim.
Once the threshold issue of Hobby Lobby’s corporate status had been disposed of, the issue before the Court was whether the RFRA was intended to protect the right of an employer to refuse to provide for its employees health insurance policies covering medical procedures that violated the employer’s religious principles. That issue was actually a closer one than partisans of either side would care to admit. Had Congress chosen to provide universal health coverage through a governmental agency (e.g., Medicare), Hobby Lobby would have been out of luck. It is well established that an individual cannot avoid a tax liability by asserting a religiously based objection to one or more of the activities that the tax supports. It is reasonable to argue that Congress’s choice to seek universal coverage through private insurers rather than governmental agencies is a matter of form, not substance.
In the last analysis, however, the Court probably got this one right. To prevail under the RFRA, the Government would have had to show that forcing Hobby Lobby’s principals to violate a tenet of their faith was the least restrictive means of fulfilling its interest in making contraceptive services universally available. It could hardly make such a showing, however, since, as the Court pointed out, the government had already devised a less restrictive manner of solving the same problem in the case of religiously affiliated non-profits, whom Congress chose to exempt from the same requirement. If it could thus satisfy the government’s interest with respect to those employees without forcing the employers to violate their religious consciences, why could it not use the same method for the employees of profit-making businesses like Hobby Lobby?
On the surface, at least, halakhic Jews have no dog in this fight.. The specific issue decided by the Court should be of little or no interest to us. But the state of Free Exercise jurisprudence in general is profoundly important to us as Jews, and its persistent weakness should be a cause for concern. The Hobby Lobby case is a timely reminder that the protection afforded religious freedom in this country is less secure than we may think.
Because halakhic Judaism is built on a series of prohibitions and actions that we call mitzvot, our ability to perform those mitzvot without interference by government is central to our ability to live as Jews. If the government, in pursuit of a neutral objective, prohibited the fulfillment of one or more mitzvot, we could not rely on the courts to intervene. That has been the Supreme Court’s position since Smith, and Hobby Lobby gives us no reason to expect a change in that position. The only reason the religious plaintiffs won in this case is that the Court was enforcing a federal statute restricting the actions of a federal agency. If the exact same issue had arisen regarding the actions of a State agency, the Court wouldn’t have even heard the case.
As a practical matter in our federal system, potential infringements of religious liberty will come more frequently from state governments than from the federal government. Although the RFRA provides some additional protection against infringements by the federal government, moreover, statutory protection is inherently less reliable than constitutional protection. Public opinion can change rapidly, and in our hyper-connected world, a policy that was once popular can become unpopular with dizzying speed.
Indeed, the political reaction to the Supreme Court’s Hobby Lobby decision makes the danger clear. Within days of the decision, Democrats in the Senate had introduced a bill designed to overrule it – hardly surprising since “reproductive freedom” almost always trumps the free exercise of religion. Yes, the move was largely symbolic. Its sponsors fell short of the 60 votes needed to advance the bill, and the Republican-controlled House wouldn’t have taken it up in any event. But the mere fact that a majority of the Senate was prepared, even symbolically, to sacrifice religious freedom to the politics of the moment should underscore the need for vigilance.
What specifically am I worried about? Two practices that are of central importance to halakhic Judaism — brit milah (circumcision) and shechita (kosher slaughter) — are already under serious attack in much of Western Europe. In the US, the opponents of these practices have had trouble breaking out of the political fringe, but they’re not about to give up, and predicting the future can be a perilous undertaking. Based on the current state of constitutional jurisprudence, if the enemies of Judaism at some point achieve a political victory restricting or undermining either of these practices, we cannot rely on the Supreme Court to intervene.
I am not suggesting that Jews face an imminent threat to the religious freedom that we enjoy in this country, and I certainly don’t minimize the gratitude we should feel for that freedom. In recent years, Shabbat-observing Jews have broken barriers in a wide range of fields. One, as we all know, came within a few hundred Florida chads of being elected vice president of the United States. Other observant Jews have served as Attorney General, White House chief of staff and US ambassador in Cairo, to say nothing of top private sector positions in major corporations, law firms or investment banking firms. The progress has been so rapid that we hardly notice it anymore.
For the most part, this progress has not come as a direct result of constitutional or legal protections, but rather as a result of decisions made by individuals who have concluded that if the person they judge to be best for a particular position happens to be an observant Jew, his or her observance should be no obstacle. The same basic dynamic has led to state and local government policies that accommodate Jewish observance in a wide range of ways. That’s the main reason that the challenges that are potentially catastrophic in Western Europe have gotten no traction in the US.
All of that does not negate the importance of constitutional protection for religious freedom or the Jewish self-interest in supporting such protection wherever possible. Not every prospective employer or municipal bureaucrat is equally enlightened, after all, and legally established norms, even if rarely enforced, have a role to play in normalizing tolerant behavior. When, as in the case of Hobby Lobby, religious freedom becomes a public issue, all committed Jews – wherever they otherwise stand on the political spectrum – belong on the side of religious freedom. At the same time, we must never forget that the most important foundation for our freedom to live as Jews comes not from litigation, legislation or even the ballot box. It comes, rather, from the day-to-day interactions of committed Jews with their neighbors, colleagues and fellow citizens.