Landmark Hobby Lobby

Landmark Hobby Lobby birth control case involves RFRA.

One important point will be if the Supreme Court will give profit-making corporations a constitutional right under RFRA to an exemption from laws that must be obeyed by everyone in the general public. But employees who received federally endorsed health care benefits have RFRA rights, too. – What is RFRA and why do we care? [Constitutional Center]

THE LANDMARK ruling that is coming down today on the Hobby Lobby birth control case has an important history that proceeds it. The Religious Freedom Restoration Act, or RFRA, was signed into law in 1993 by President Bill Clinton. In 1997, however, the Supreme Court ruled it could not be applied to the states, with 22 states creating their own version of RFRA after this opinion. A Constitutional Center post outlines the details, as we await a ruling that will make history.

It was Justice Anthony Kennedy who led the majority opinion in 1997 that said Congress had overstepped its bounds with the RFRA, because “Congress couldn’t determine the way in which states could enforce RFRA’s restrictions” [Constitutional Center].

SCOTUSBLOG weighed in on RFRA in February:

The Supreme Court granted certiorari in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius to resolve a question of statutory construction: Does the Religious Freedom Restoration Act of 1993 (RFRA) entitle a for-profit corporation to an exemption from the requirement of providing employees with health coverage that includes contraception, on the ground that the owners of the corporation have religious objections to providing such coverage? That is an important question that the other participants in this symposium and the Justices themselves are now considering.

From the Constitutional Center:

Here is the back story: In Employment Division v. Smith (1990), two American Indians who worked as private drug rehab counselors ingested peyote as part of religious ceremonies conducted by the Native American Church, and they were subsequently fired. The U.S. Supreme Court upheld the firing, with Justice Antonin Scalia saying that using a religious exemption in conflict of a valid law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

A near unanimous Congress passed RFRA in 1993 and President Bill Clinton signed the law. RFRA said that “governments should not substantially burden religious exercise without compelling justification” and “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”

The compelling interest test dated back to another Supreme Court decision, Sherbert v. Verner, from 1963.

The Sherbert test said that if a person claimed a sincere religious belief, and a government action placed a substantial burden on that belief, the government needed to prove a compelling state interest, and that it pursued that action in the least burdensome way.

TPM’s Sahil Kapur:

Oral arguments in March revealed a divided court. Liberal-leaning justices, particularly the three women, warned that granting such an exemption could declare open season on neutral law for any corporation that can come up with a religious objection. Conservative-leaning justices appeared ready to rule against the Obama administration, expressing deep skepticism that the mandate passes the strict scrutiny test imposed by Congress.

The expected swing vote is Justice Anthony Kennedy, who appeared far from convinced that the contraceptive mandate is legal. “Under your view, a profit corporation … could be forced in principle to pay for abortions,” he told the administration’s lawyer, Donald Verrilli.

But he also expressed a modicum of sympathy for the female employees who might be harmed, wondering aloud if the religious beliefs of their employers “trump” their right to contraceptive services without co-pays, as granted by Congress.

We’re going to soon find out if employees have rights equal to the religious beliefs of the owners for whom they work.