The 800-lb. Gorilla in the Courtroom During the Argument on the Contraception Mandate Cases

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During the oral argument of the contraception mandate cases, both parties’ lawyers and the Justices circled around within the Spirograph that is the Religious Freedom Restoration Act.   Did Congress intend to include large, for-profit corporations like Hobby Lobby or any for-profit corporation itself?  Then its statutory terms flew around the room: “substantial burden” and “compelling interest” and “least restrictive means.”

Let me just say at the outset that it was refreshing to hear everyone agree, at least, that the “least restrictive means” test in RFRA is nowhere to be found in the Court’s free exercise cases.  It is about time that RFRA’s camouflage of reasonableness is yanked away and Americans can see it for what it is: extreme religious liberty, unlike any in our history.

What was missing was a dose of reality.  That was particularly apparent when Justice Alito made the following point:

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 areinhumane. 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.”  (Supreme Court oral argument, March 25, 2014)

The line completely divorced from reality is this one:  “they would have no recourse whatsoever.”

How can anyone argue that religious believers in the United States would have “no recourse whatsoever” if they lacked RFRA and could not automatically trump any neutral, generally applicable law?    It is certainly an odd point to be made in the midst of an oral argument involving the single most religion-friendly law in the history of the United States.  But set aside RFRA (please) to look at whether even without RFRA there would be recourse.

A Bit of Free Exercise History that Should Not Be Forgotten

As we all know by now, in Employment Div. v. Smith, the Supreme Court held that drug counselors do not have a free exercise right to use peyote, an illegal drug in Oregon, even if they are used as part of a religious ceremony.   The decision led to two parallel results:

 1.  Religious lobbyists leapt across the street to ask Congress to give them more religious liberty than they ever received before because the Court had utterly “abandoned” religious liberty.

2.  One state after another, including Oregon, and the federal government enacted exemptions for the sacramental use of peyote.

Hmm.  Now let’s make sure everyone is on the same page here.  After Smith, the small minority Native American Church believers obtained an avalanche of legislative exemptions.  Moreover, the Smith Court had predicted just such a response:

 Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.  

And let’s not stop at the legislative solicitude for the need to use peyote, and let’s be clear about the thousands of religious exemptions that span this country, including ones that are utterly against any sensible public policy, like exemptions from criminal and civil laws against the death of children from easily treated medical ailments.

The exemption universe lurked in the background of the argument today as Justices even had exchanges with the lawyers about the many abortion exemptions that run through federal (and state) law.  But this was only because certain Justices are adamantly opposed to abortion (and not just to the doctrine of Roe v. Wade that accords women the right to control whether they obtain an abortion).

RFRA was demanded in 1993 and in 2000 without any reference to the vast swath of religious exemptions in the United States, and Congress foolishly asked no hard questions, because it trusted religious believers to tell the truth

(1) about the doctrine;

(2) the actual state of religious liberty;

and (3) their true intentions if they obtained RFRA.

They were forthcoming about none of these.  If I have not made my point clearly enough, RFRA was a hoax on Congress.  Now it is threatening women, employees, and the vulnerable.  That was never more clear than during today’s oral argument.

The 800-lb. Gorilla in the Courtroom

            The 800-lb. gorilla lurking in the courtroom was the political reality of religion in the United States, which makes the Reynolds/Braunfeld/Lee/Smith/Lukumi rule sensible, and the RFRA rule nonsensical.  Religious lobbyists have a long, successful history of obtaining what they seek in the legislatures.  Members irrationally quake when they face religious lobbyists, who purport to represent thousands if not millions of believers all by themselves (as though Americans don’t vote their own consciences).

That the anti-contraception and abortion religious forces failed to move contraception out of the Affordable Care Act’s mandated coverage speaks volumes about the government’s compelling interest.  Politicians simply do not stand up to such lobbyists unless they are absolutely committed to the policy goal.

This gorilla obviously was walking the halls of the Department of Justice as it considered what arguments to make in this case.  Instead of taking the strongest position it could to protect women from discrimination based on gender and religion, as it should have, it eschewed the constitutional arguments against RFRA that would at least narrow its application.  The DOJ also failed to push the strong Establishment Clause arguments against this extraordinary extension of RFRA to for-profit corporations.

Actually, the gorilla has seemed to have a stranglehold generally on the Obama Administration until now.  The President gave a stirring speech about the separation of church and state before first being elected, but has not followed through on such principles, instead deferring to religious entities, even in extreme circumstances.  For example, his Administration backed the Vatican in its only child sex abuse case to make it to the Supreme Court.  But that, my friends, is a story for another day.

Marci Hamilton

Marci A. Hamilton is one of the United States’ leading church/state scholars and is a Fox Family Pavilion Distinguished Scholar in Residence in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania. She is also the Academic Director and President of CHILD USA, a 501(c)(3) nonprofit dedicated to interdisciplinary evidence-based research and tracking of medical, legal, and psychological developments to prevent and deter child abuse and neglect, which she co-leads with Dr. Steven Berkowitz, University of Pennsylvania Medical School, and Dr. Paul Offit, Children’s Hospital of Philadelphia. She holds the Paul R. Verkuil Research Chair at the Benjamin N. Cardozo School of Law, Yeshiva University, through 2018.