In 1993, Bill Clinton signed the Religious Freedom Restoration Act. The law represented the kind of consensus that even then was rare: it passed on a voice vote in the House of Representatives and 97-3 in the Senate. A resolution praising cute kittens probably couldn't have gotten as much support. And yet the legislation was a serious mistake, as demonstrated by the recent Supreme Court decision permitting Hobby Lobby to deny its employees their right to contraceptive coverage.
The origins of RFRA can be found in the 1990 Supreme Court case Oregon v. Smith. Two native Americans, Alfred Smith and Galen Black, were fired because they took peyote as part of a religious ceremony, and were subsequently denied unemployment benefits by the state of Oregon. They sued, arguing that Oregon had violated their First Amendment right to the free exercise of religion.
A majority of the Supreme Court, through Justice Antonin Scalia, rejected the claims of Smith and Black. As long as a law was neutral and not targeted at a religious practice, regulations of conduct (as opposed to belief) did not violate the Free Exercise Clause.
The decision generated immediate disagreement from a strange-bedfellows coalition of civil libertarians and religious conservatives. This led to the passage of RFRA, which sought to replace the Smith rule with a complex balancing test that provided an exception for religious considerations. The Supreme Court held that Congress could not overrule the court's First Amendment interpretation as it applied to states, but RFRA still applies to federal regulations and (unless Congress explicitly stipulates otherwise) to federal legislation.
This is what led to the ruling that Congress could not require Hobby Lobby and other closely held corporations to comply with federal requirements that employer-provided health insurance cover contraceptives for women.
But while the sympathy for Smith and Black was understandable, Scalia's opinion in Smith was sound and RFRA was a mistake. The problem with what was done to Smith and Black wasn't really religious discrimination — the appropriate remedy for the case would be to not deny unemployment benefits to anyone because they failed a drug test, not to carve out a special exemption for religious practice.
Departing from Smith's clear rule, as we saw in the Hobby Lobby case, provides a basis for the religious majority to deny the rights of others. And that's not the only problem with RFRA. As Justice John Paul Stevens observed, the statute probably violates another part of the First Amendment — the Establishment Clause. The law provides the religious, but nobody else, potential exemption from neutrally applicable laws, and "[t]his governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment."
To be clear, this doesn't mean that I think that the language of RFRA required the result in Hobby Lobby. Justice Alito's majority opinion was strained and unpersuasive, and certainly it's vanishingly unlikely that RFRA would have passed near-unanimously had legislators foreseen this kind of outcome. The fact that Alito felt it necessary to run away from the broader implications of his own opinion ("our decision in these cases is concerned solely with the contraceptive mandate") also suggests that the holding will be messy and unworkable.
And yet, it's exactly that messiness and unworkability that Congress invited when it passed RFRA. The Supreme Court's standard in Smith was clear. The standard created by Congress — that federal law cannot "substantially burden" religious practice unless there is no "less restrictive means" for achieving a "legitimate" state end — was not. Terms like "substantial burden" cannot be applied with mathematical precision, giving a powerful tool to cultural warriors in black robes.
That Justice Alito and his four fellow appointees would choose to apply this law to indulge in two contemporary Republican obsessions (reflexive opposition to the Affordable Care Act and the reproductive freedom of women) while favoring the interests of an employer over its employees might be objectionable, but it's hardly surprising. The liberals who supported RFRA let a superficially sympathetic case fool them into supporting a law whose consequences will be anything but liberal going forward.
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