The United States Supreme Court set forth its ruling on June 30, 2014, to the dispute over the Affordable Care Act’s (ACA’s) contraception mandate. Burwell v. Hobby Lobby Stores, Inc., October Term 2013 (Slip Op.) Writing for a four-member plurality, Justice Alito held that the Religious Freedom Restoration Act (the RFRA) supplied the basis for a claimed religious exemption from the ACA requirement to include contraception in a company’s employee health insurance plan. Members of the Court debated whether or not a “closely held corporation,” that has entered a highly-regulated marketplace, may invoke the protection of the RFRA to resist a regulation designed to ensure adequate health insurance for female employees. The plurality concluded that it could, and also that the government was not able to show that it had pursued the least intrusive alternative available to achieve the compelling end of securing women’s health needs.
The concurring justice, Justice Kennedy, underscored that the decision narrowly rules that employers may not be required to act against their religious beliefs where it is not difficult “to accommodate the government’s interest, and in fact the mechanism for doing so is already in place.” (Slip op. at 4 (Kennedy, J., concurring.) He thus concluded that the decision would not negatively impact others where “it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.” (Id.) By contrast, Justice Ginsburg’s dissent contends that the Court’s required exemption demands accommodation of a for-profit corporation’s religious beliefs notwithstanding “the impact of that accommodation” on “thousands of women employed by Hobby Lobby,” who do not share the owners’ religious beliefs. (Slip op. at 2 (Ginsburg, J., dissenting.) Hence the Court’s ruling violates the principle that religious accommodations “must not significantly impinge on the interests of third parties.” (Id. at 7.) But that is a debate that will go on.
Another interesting angle is this. Justice Alito stressed that the RFRA is to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” (Slip. Op. at 26 (Alito J., plurality) The plurality said that “RFRA prohibits the ‘Government [from] substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability.” (Id. at 16.) The plurality also viewed the question of whether, as a matter of science, the contraceptive methods objected to could really be called abortifacients as basically irrelevant—so long as the company’s owners believed that they were. (Id. at 37.) It relied on prior dicta of the Court that it is not for the Court to determine the reasonableness of religious belief so long as they are sincerely held. (Id.)
Several weeks ago ministers of the United Church of Christ (UCC) joined a lawsuit challenging North Carolina’s law forbidding same-sex marriage. The unique dimension of this suit was that the ministers asserted that the law in North Carolina violated their right to the free exercise of religion, as they wanted to perform a religious marriage ceremony for same-sex couples. The law in North Carolina, however, criminalized the action of these ministers in conducting a same-sex wedding ceremony. My friend and colleague, Leslie Griffin, thought there are better legal grounds for challenging laws against gay marriage, and so wrote, UCC: Unfortunate Clergy Confusion, on the blog she does with Marci Hamilton. She would not construe religious liberty to create exemptions from laws that are general and not aimed at harming some religion. Her opposition to “mandatory free exercise exemptions” becomes that much more compelling in the wake of the Court’s decision in Hobby Lobby.
On the other hand, though, if courts are going to seriously implement the requirements of strict scrutiny as called for in the RFRA, it is hard to see how the strict scrutiny called for in state-statute equivalents of the RFRA would not create valid religious liberty claims in opposition to bans on gay marriage. Surely the UCC ministers are substantially burdened in their exercise of religion by a gay marriage ban. Several courts have recently found that there is not even a rational justification for gay marriage bans—so it is especially difficult to consider that states could show a compelling state interest for such bans. The irony presented does also have a certain delicious quality to it. The strongest proponents of expansive mandatory free exercise exemptions have been conservative religionists who have, among other things, tried to use state equivalents of the RFRA to justify religion-based decisions to discriminate against participants in gay weddings. Surely, however, if there are any whose religious beliefs are substantially burdened by state law, it is those who, on religious grounds, are committed to implementing the desires of same-sex couples for marriage.