Thinking the Unthinkable at the Supreme Court

Solicitor General Donald Verrilli had some trouble clarifying what principle he was defending during the Hobby Lobby oral argument, which involved the for-profit companies’ challenges to the contraceptive mandate of the Affordable Care Act. His opponents were arguing that it is unthinkable that a religious group or individual be asked to obey any law that conflicts with its moral beliefs. Verrilli should have responded that it is unthinkable that religious groups should automatically qualify for exemptions from health and antidiscrimination laws under the First Amendment and the Religious Freedom Restoration Act (RFRA).

The latter point was made more forcefully in an excellent amicus brief filed on the government’s behalf by civil rights leader Julian Bond, the NAACP, the ACLU and others, which recalled that many American Christians supported slavery and segregation as a matter of faith.

For centuries many Christians interpreted the Genesis story of Noah, Ham and Canaan to provide a biblical justification for slavery. After Noah survived the great flood, his son Ham, seeing him lying naked and passed out from drink, violated Noah’s dignity in a manner left unclear by the text. As punishment, Noah afflicted Canaan (Ham’s son and Noah’s grandson) with the curse of slavery: “Cursed be Canaan, slave of slave shall he be to his brothers.”

Even after the Thirteenth Amendment outlawed slavery in the United States, many American Christians preached a gospel of racial division based on the Canaan story. They believed that from Noah’s son Shem descended the Semitic peoples; from Noah’s son Japheth, the Caucasians; and from Ham, the people of Africa. They believed that God divided those peoples in order that they might seek him, and that any mixing of the races violated the most important commands of God Almighty. They based Jim Crow laws on those beliefs and urged the courts to honor them. Frequently, the courts did.

The Bond brief recalls that during the civil rights era, many of those Christians demanded exemptions from the laws requiring equality in education, employment, marriage and public accommodation. It was unthinkable to them that they would obey the law of racial equality, which violated their most fundamental religious beliefs. Nonetheless, “the courts rejected these claims, recognizing the vital state interest in ending discrimination in these public arenas and embracing a vision of equality that did not sanction piecemeal exemptions.”

The Bond brief argues that the “story of women’s emerging equality follows a similar pattern.” Similarly, that is, many Christians have long opposed women’s equality in both church and state. It is unthinkable to them that spouses be treated equally, that women earn equal pay, that women enjoy reproductive freedom, that women use contraceptives, that women choose abortion. Like the opponents of racial equality, many Christians opposed to women’s equality insist that their religious beliefs automatically trump the gender antidiscrimination laws.

Similarly, today many religious groups and individuals find it unthinkable that they would provide commercial services to gays and lesbians exercising their right to marry.

The principle learned from racial, gender and marriage equality is that religion should not receive deference and exemption from the law simply because it is religious.

Yet Verrilli (perhaps for pragmatic reasons) couldn’t quite bring himself to defend that principle when pushed by questions from Justices Kennedy and Alito:

JUSTICE KENNEDY: Under your view, a profit corporation could be forced ­­ in principle, there are some statutes on the books now which would prevent it, but ­­ could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now ­­ the law now is to the contrary.

JUSTICE KENNEDY: But your reasoning would permit that.

GENERAL VERRILLI: Well, I think that ­­ you know, I don’t think that that’s ­­ I think it would depend on the law and it would depend on the entity. It certainly wouldn’t be true, I think, for religious nonprofits. It certainly wouldn’t be true for a church.

JUSTICE KENNEDY: I’m talking about a profit corporation. You say profit corporations just don’t have any standing to vindicate the religious rights of their shareholders and owners.

GENERAL VERRILLI: Well, I think that if it were for a for­profit corporation and if such a law like that were enacted, then you’re right, under our theory that the for­profit corporation wouldn’t have an ability to sue. But there is no law like that on the books. In fact, the law is the opposite.



Let me give you this example. According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane. 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.

GENERAL VERRILLI: Well, I’m not sure they couldn’t raise a First Amendment claim, Justice Alito. I think if you had a targeted law like that, that targeted a specific religious practice, that ­­ I don’t think it is our position that they couldn’t make a free exercise claim in that circumstance and so ­­

JUSTICE ALITO: Why is that ­­

JUSTICE KENNEDY: Well, but you’re getting away from the hypothetical. Say ­­ Justice Alito’s hypothetical was that the impetus for this was humane treatment of animals. There was no animus to religion at all, which in the Church of Lukumi, there was an animus to the religion. So we’re taking that out of the hypothetical.


GENERAL VERRILLI: Right. Well, I think if it were targeted only at the practices of the ­­ the kosher and halal practices, then I think you would have an issue of whether it’s a targeted law or not. But even if it is ­­

JUSTICE ALITO: Well, they say no animal may be slaughtered unless it’s stunned first, unless the animal is rendered unconscious before it is slaughtered.

GENERAL VERRILLI: Well, I think in that circumstance, you would have, I think, an ability for customers to bring suit. I think you might recognize third party standing on behalf of the corporation ­­ on the corporations, on behalf of customers. So a suit like that could be brought.

Verrilli’s answers conveyed one important principle of the First Amendment, namely that minority religions must not be targeted or treated unequally. If secular butchers may slaughter animals, then Santeria, Jewish and Muslim believers may do so as well, and legislative efforts to limit religious practice equivalent to secular practices will properly be defeated.

The corresponding principle, however, was neglected. Once secular employers and individuals must obey the laws of racial equality, women’s equality, gay and lesbian equality, and (perhaps one day) animal rights, then religious believers must do the same, even at times when it is religiously and morally unthinkable to them that they would obey laws promoting those ideals.

The alternative—religious exemptions from the laws protect equality and liberty—is unthinkable.

Leslie C. Griffin

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Professor Griffin, who teaches constitutional law, is known for her interdisciplinary work in law and religion. She holds a Ph.D. in Religious Studies from Yale University and a J.D. from Stanford Law School.