In recent weeks, culminating with the push by an Alabama judge to be exempt from issuing marriage licenses to LGBT couples and the recent showdown over marriage licenses in Rowan County, Kentucky, Americans have heard a growing drumbeat of claims that laws and rules that apply to everyone concerning marriage and insurance coverage for contraception should not apply to certain people who object. In case after case, we have heard cries of religious liberty—often mixed with claims that our country faces a “war on Christians.” These claims rarely hold up to scrutiny, but if the exemptions they seek are granted they would come with serious consequences for women and LGBT citizens.
Religious colleges and other institutions claim that they should not even be required to tell the government when they decide to exercise their legal option not to include contraception coverage for their employees in insurance plans—an issue now likely to reach the Supreme Court because one (out of eight) federal appellate court has just agreed. A secular anti-abortion group claims that it should not have to provide such coverage to its employees because religious groups don’t, while several of the group’s religious employees want separate policies without such coverage even if their employer offers it, and a lower court judge agrees. An Alabama probate judge and a county clerk in Kentucky assert that they should not have to issue marriage licenses to LGBT couples despite the Supreme Court’s landmark Obergefell ruling on equal marriage rights. What opened the door for all this was the Supreme Court’s flawed 5-4 decision last year inBurwell v. Hobby Lobby Stores, Inc., which rewrote much of the law on religious liberty.
Religious liberty exemptions before Hobby Lobby
Before Hobby Lobby, both the Supreme Court and Congress recognized that exceptions to neutral or generally applicable laws were appropriate for religious adherents under carefully limited circumstances. When a neutral law or rule created a “substantial burden” on a person’s “exercise of religion,” even though the law was not specifically targeted at religion, the law should not be applied to that person unless it was the “least restrictive means” of furthering a “compelling governmental interest.” So, for example, the Court ruled in Wisconsin v. Yoder that Amish families were exempt from a neutral law requiring high school attendance, since that requirement substantially burdened the Amish families’ ability to exercise their religion, including educating and acculturating their children, and the “compelling governmental interest” standard was not met. That was the Court’s interpretation of the Free Exercise Clause of the First Amendment, which the Court explained protected the free exercise of religion by individuals and religious institutions.
Congress became involved in two ways. Initially, in an attempt to avoid a substantial burden on religious free exercise, Congress sometimes granted or authorized religious individuals or institutions exemptions from generally applicable laws. The Supreme Court has approved narrow efforts to provide such carefully targeted exemptions to accommodate the free exercise of religion. For example, it rejected a challenge to the Congressional exemption of religious organizations from the general federal prohibition in Title VII against employment discrimination based on religion, pointing out that the exemption would prevent “government interference” with religious groups’ ability to “define and carry out their religious missions,” and that there is “no reason to require that the exemption comes packaged with benefits to secular entities.”
In addition, when a 5-4 1990 decision of the Court effectively eliminated the “substantial burden” test used in cases like Yoder as a matter of constitutional law, Congress overwhelmingly passed a statute in 1993 that restored that standard as a matter of federal civil rights law in the Religious Freedom Restoration Act. The law specifically stated that its purpose was to “restore” the use of the substantial burden/compelling interest balancing test where persons’ “free exercise of religion was substantially burdened” by generally applicable laws or rules. As someone involved in drafting and helping promote RFRA’s passage, I can testify that this restorative purpose was clearly understood.
The Supreme Court Rewrites Religious Liberty Protections in Hobby Lobby
In June, 2014, however, a narrow 5-4 Supreme Court majority dramatically misinterpreted and effectively rewrote RFRA in Burwell v. Hobby Lobby Stores, Inc. In that case, the Court ruled that religious objections by a for-profit corporation’s owners could exempt the company under RFRA from providing insurance including contraceptive coverage to employees under the mandate of the Affordable Care Act.
To begin with, the 5-4 majority ruled, contrary to RFRA’s language and clear legislative history, that the law was intended to go far beyond “merely restor[ing] the balancing test” used in earlier cases, and provided “even broader protection for religious liberty than was available under those decisions.” As Justice Ginsburg explained for the four dissenters, that fundamental error led the majority to even more serious errors in distorting RFRA.
The change in prior law that has gotten the most attention was the majority’s ruling that a for-profit corporation could use RFRA to claim an exemption from a neutral law, even though the majority did not even try to explain how a for-profit corporation could “exercise” religion. As Justice Ginsburg pointed out in dissent, “no decision of this Court recognized a for-profit corporation’s qualification for an exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.”
Just as importantly, however, the 5-4 majority rewrote the “substantial burden” on “exercise of religion” requirement of RFRA. The majority ruled that this requirement was met because the contraceptive coverage requirement was in conflict with “the ability of the objecting parties to conduct business in accordance with their religious beliefs” that certain contraceptives are immoral. As Justice Ginsburg pointed out and as earlier cases made clear, however, that is the wrong question.
The question is not whether a religious adherent has a religious objection to a government requirement and can “conduct business” in accord with that religious view. Instead, the right question is whether there has been a substantial burden on the actual exercise of religion. That is precisely why the Court previously rejected the substantial burden claim in Bowen v. Roy that the government’s required use of Social Security numbers to administer benefit programs was invalid as applied to an individual who sincerely believed that it offended his religion. That requirement, the Court explained, did not directly affect what the religious adherent “may believe or what he may do” in exercising his religion, and thus did not constitute a substantial burden. Similarly, as the Court had explained in rejecting an Amish farmer’s claim in United States v. Lee that paying Social Security taxes violated his religious conscience, when “followers of a particular sect enter into commercial activity as a matter of choice,” the “limits they accept on their own activity as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.” Based on religious liberty principles as understood up until Hobby Lobby, the employer’s religious objection to insurance coverage for contraception, particularly when the decision whether to purchase contraceptives was up to individual employees, simply did not constitute a “substantial burden” on the “exercise of religion.”
Justice Ginsburg’s warning that the majority was entering a “minefield” in Hobby Lobby has already proven true. That minefield has included claims to even broader ACA exemptions by religious non-profits, similar exemption claims by individual employees and non-religious anti-abortion groups, and claims of religious exemption from issuing marriage licenses to LGBT couples under Obergefell.
Religious non-profits make even broader exemption claims after Hobby Lobby
Even before Hobby Lobby, the Obama administration had provided a voluntary accommodation in ACA regulations for churches, religious colleges, and other non-profit religious employers, allowing them to opt out of providing contraceptive coverage for employees in their insurance plans, simply by filling out a government form and giving it to their insurer or notifying the government by letter, so that other arrangements could be made for their employees who wanted that coverage. Impelled by Hobby Lobby, however, a number of religious non-profits have objected to the accommodation and argued that simply requiring them to notify the government of their decision to opt out constitutes a “substantial burden” on their “exercise of religion” under RFRA and is invalid.
Until last month, every one of the seven federal appellate courts to have considered these RFRA claims has rejected them, often specifically focusing on the “substantial burden” issue. For example, the Second Circuit’s August decision inCatholic Health Care System v. Burwell explained, relying on prior Supreme Court decisions like Bowen, that the opt out notification requirement did not impair or substantially burden the non-profits’ “freedom to believe, express, and exercise” their religion. Instead, the court explained, the non-profits were effectively and improperly seeking “to control” their employees’ decisions concerning contraceptives by objecting to simply “identifying themselves as religious objectors,” going far beyond the protection provided by RFRA.
Last month, however, the Eighth Circuit Court of Appeals upheld these RFRA claims in Sharpe Holdings v. U.S. Department of HHS. It ruled that the non-profit institutions’ claim that their “sincere religious belief” was offended was enough to prove a “substantial burden,” and that the courts could not even question this claim, effectively granting them the ability to control the decisions of their employees and the third-party insurers that would provide the insurance coverage. Under that logic, the Supreme Court should have allowed the religious adherent’s objection to the use of Social Security numbers in Bowen to have prevailed, despite the lack of substantial burden on the actual free exercise of religion.
The Supreme Court has already been asked to review a number of these decisions, and the split among lower courts caused by the ruling in Sharpe Holdings makes it much more likely that it will do so. Given that even the 5-4 majority inHobby Lobby pointed to the then-existing religious accommodation as a way to alleviate the purported “substantial burden” on for-profit corporations like Hobby Lobby, there is reason to hope that the Court will do the right thing in this instance. But the potential harm to female employees of non-profits across the country stemming from Hobby Lobby’s rewriting of RFRA is serious.
Contraception exemption claims from individual employees and non-religious non-profits
At the end of August, a ruling by a conservative lower court judge in Washington D.C. went even further on exemption claims concerning ACA-required contraceptive coverage. In March For Life v. Burwell, Judge Richard Leon ruled that individual religious employees who object to insurance policies that simply offer them the option of purchasing contraceptive coverage had to be offered an alternative under RFRA, and that a non-religious anti-abortion group had a constitutional right to opt out of providing such coverage to employees under its insurance plan.
The individual employees’ RFRA claim stems directly from the Court’s rewriting of RFRA and weakening of the substantial burden requirement in Hobby Lobby. Judge Leon ruled that there was a substantial burden in the case, based on the employees’ religious objection to “participating in a health insurance plan that covers contraceptives.” In other words, he equated being religiously offended by the plan with actually suffering from a substantial burden on religious free exercise, exactly as the Court did in Hobby Lobby. In the words of the Supreme Court and the Second Circuit, how does the fact that some other employees may choose to purchase contraceptives under a general employee health insurance plan substantially burden or impair the religious employees’ “freedom to believe, express, and exercise” their religion, since they can simply decline such a purchase? The short answer is that it doesn’t, as the D.C. Circuit will hopefully rule when the decision is appealed.
The other part of Leon’s decision is equally flawed and, more indirectly, is further fruit of Hobby Lobby. Leon ruled that March For Life, an avowedly non-religious organization opposed to abortion, should receive the same exemption from providing contraceptive coverage as religious employers whose objection is on religious grounds, because to treat them differently would violate the Equal Protection Clause. Leon’s opinion acknowledged and even quoted the Supreme Court’s decision rejecting a similar attack on the religious exemption from Title VII, but claimed this was different because part of the government’s rationale for the exemption for religious institutions – the fact that employees of such groups are less likely to want to use contraceptives – applies to non-religious groups opposed to abortion as well.
Leon’s opinion ignores the fact that the very government exemption regulation he relied on makes clear that an important reason for the exemption was quite specifically to accord with the long American tradition of providing an accommodation for religion itself. As the 2013 rule explains, part of its purpose was to “respect the religious interests of houses or worship and their integrated auxiliaries” and to provide an “accommodation” that is consistent with “religious accommodations in related areas of federal law” such as “Title VII.” As the Supreme Court ruled in the case upholding the Title VII religious exemption, as Leon acknowledged, there is “no reason to require that the exemption comes packaged with benefits to secular entities.”
Although Leon’s opinion is clearly wrong, the Hobby Lobby ruling may make the ruling on non-religious non-profits seem to make sense to some. Under the Supreme Court’s ruling, even apparently secular, for-profit corporations can claim an exemption from the contraceptive insurance coverage requirement based on the religious views of their owners. And no real “substantial burden” on “religious exercise” need be shown in the previously accepted sense; religious objection or offense to religious beliefs is sufficient. Under those circumstances, it may seem unfair to some that a dedicated secular non-profit organization, with serious but non-religious objections to contraceptive insurance coverage, cannot claim a similar exemption.
This claim illustrates one of the dangers of Hobby Lobby’s rewriting of religious liberty law. Under the previous understanding of the Constitution and RFRA, religious objections to general laws and rules should be treated differently and accorded special protection because of the importance in our country of avoiding substantial burdens by government on the free exercise of religion. But part of the price of that special treatment must be ensuring that religious exemptions are appropriately targeted and balanced against other interests so they are not abused and do not give rise to the claim that non-religious objections should be treated the same way. By making it so much easier to claim and obtain religious exemptions under RFRA, Hobby Lobby puts at risk the whole concept of special protection for religion in some cases.
Religious liberty exemption claims from issuing marriage licenses to LGBT couples
Finally, we can look at least in part to Hobby Lobby and previous Court rulings to understand the basis for the request by an Alabama probate judge that the state supreme court rule that he and other officials with religious objections should not have to issue marriage licenses to LGBT couples, as well as the similar claim by Kentucky clerk Kim Davis (and some of her deputies), despite the Supreme Court’s ruling in Obergefell. Judge Williams asserts that issuing such licenses offends his “religious principles” and that his religious liberty is substantially burdened, and indeed claims that the Supreme Court’s Obergefell decision should have “no force or effect” in Alabama in light of such religious objections. Davis claims that she is “substantially burdened” under a Kentucky version of RFRA, and under the Constitution, by the governor’s directive after Obergefell that all county clerks issue marriage licenses to same sex couples, because she strongly objects to such marriages on religious grounds.
These assertions harken back to Hobby Lobby’s claim of a “substantial burden” because its owners had religious objections to contraceptive coverage. As federal judge David Bunning explained in initially rejecting Davis’ claim, however, any burden is slight because she is being asked only to “signify that couples meet the legal requirements to marry” and she can continue to believe and practice her religion as she pleases. This echoes the Supreme Court in Bowen, since the directive does not restrict her ability to engage in “religious activities” as part of her religious “free exercise” or compel her personally to endorse same-sex marriage.
In fact, every court to have considered Davis’ claim has so far rejected it. The Sixth Circuit Court of Appeals and the Supreme Court rejected her attempts to stay the ruling against her, with the Sixth Circuit specifically pointing out that action by her to approve marriage licenses would be in her official capacity as county clerk that she has voluntarily chosen to assume, echoing the Supreme Court’s warning that when religious adherents engage in commercial (in this case governmental) work “as a matter of choice,” their religious beliefs “are not to be superimposed on the statutory (and in this case constitutional) schemes that are binding on others in that activity.” Of course, the fact that Davis is a public official and her refusal to perform her duties hurt everyone seeking a marriage license in Rowan County makes it even worse. Indeed, as the Court has also recognized, a person who claims a religious accommodation has no “right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities.” This principle that religious exemption claims not harm or impose religious views on third parties, which Justice Ginsburg criticized the majority in Hobby Lobby for not respecting, would clearly be violated by a ruling in favor of Davis or Williams, or by a holding allowing religious non-profits to effectively prevent their employees from obtaining insurance coverage for contraceptives by refusing to inform the government of their decision to decline such coverage.
Exactly how the Kentucky situation will be resolved in the end, with Davis’ deputies agreeing to issue marriage licenses but her claims pending on appeal, remains to be seen. As yet, there has been no ruling on Judge Williams’ petition, and the Alabama Supreme Court’s record on LGBT marriage is extremely troubling at best. But if the courts continue to adhere to appropriate principles on religious liberty exemptions, these public officials will lose and the claims of LGBT couples who had previously been denied marriage licenses will prevail. That result, along with the rejection of pending claims concerning contraceptive insurance coverage by religious and non-religious non-profits, may help prevent further damage from Hobby Lobby’s rewriting of RFRA and religious accommodation law. In the long run, only reconsideration or limitation by the Supreme Court of that ruling, or a decision by Congress to amend RFRA’s language to restore its original purpose, will truly repair the damage that has been done by the Court majority.
Elliot Mincberg is a Senior Fellow at People For the American Way.