The Supreme Court struck the right balance between the free exercise of religion and the obligation of people — religious and nonreligious alike — way back in 1990.
Back then, in a case called Employment Division, Department of Human Resources of Oregon v. Smith, the court held that two employees of a private drug rehabilitation facility couldn’t get unemployment compensation after they were fired for ingesting peyote in a Native American religious ceremony.
Up until then, the court had used a balancing test, deciding whether a law that interfered with the free exercise of religion was justified by the government’s reasons for passing the law in the first place. But in the Employment Division case, the majority rejected that approach, saying “a holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by ‘compelling governmental interest’ on the basis of religious belief.”
In other words, everybody has to follow otherwise-constitutional laws.
Congress, of course, promptly found a way to pander to the aggrieved, writing and passing the Religious Freedom Restoration Act in 1993. Nearly every member voted aye, including Nevada’s entire congressional delegation at the time — Sens. Richard Bryan and Harry Reid, and Reps. Jim Bilbray and Barbara Vucanovich.
Essentially, the act restored that balancing test, saying the government could not “substantially” burden the free exercise of religion, even with a law that applies generally to everybody, unless it has a compelling interest. But the act also added something: Even when the government has a compelling interest, it must fashion laws in the least restrictive way to get there, the strictest legal burden.
What could go wrong?
Flash forward 20 years, as two private, closely held corporations —Hobby Lobby Stores, Inc. and Conestoga Wood Specialties, Inc. — asserted their companies had the right under the Constitution and the Religious Freedom Restoration Act to refuse to provide four specific types of contraception mandated under regulations stemming from the Affordable Care Act, contraception that the corporate owners say constitutes abortion.
In a 5-4 ruling, the court held — for the first time ever — that private, closely held corporations enjoyed free-exercise rights, and could refuse to provide the offending contraception.
Although justices said the impact of the ruling is limited, and that it “seems unlikely” that larger, publicly held corporations would seek to avail themselves of religious freedom rights, experts have concerns.
“The vast majority of corporations are closely held corporations,” explained Adam Winkler, a UCLA law professor writing a book on corporate personhood.
“This is really an exception to federal law, which is really quite broad,” Winkler said. “This case puts courts in the business of picking and choosing which businesses are exempt from federal laws.” (According to the Daily Beast, 82 companies were preparing to drop contraceptive coverage they claim was religiously objectionable on the morning after the court’s ruling.)
Professor Leslie Griffin of UNLV’s Boyd School of Law agreed. Using this case as precedent, why wouldn’t Catholic-owned, closely held corporations argue their belief that all contraception violates their sincerely held religious views and that they should be exempt from providing birth control entirely? “The breadth of it is incredible,” Griffin said.
Griffin added that one of the most disturbing passages is the ruling’s language saying courts should not question religious beliefs even in the process of determining whether a person’s religious freedom is actually burdened.
“I really don’t view this as narrow, by any stretch of the imagination,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “It makes ‘sincere religious objection’ a much stronger argument in areas that, quite frankly, we’re not even thinking about.”
Indeed, Levinson said we might have to wait another 20 years to find out precisely how broad Monday’s ruling really is, as corporations object to other laws and regulations on religious grounds.
Most troubling, Winkler and Levinson said, is the fact that while justices said laws against racial discrimination would probably withstand an attack on religious grounds, they left unmentioned laws prohibiting discrimination against gays, lesbians and transgender people. And it’s much more likely that a corporation would seek religiously based exemption from laws covering anti-gay discrimination than they would laws protecting racial minorities.
We’ll wrestle with that question, and perhaps many, many more, because Congress decided it could not leave undisturbed a perfectly reasonable set of Supreme Court precedents. Let no one ever say that pandering does not have consequences.
Steve Sebelius is a Las Vegas Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or firstname.lastname@example.org.