Is the U.S. Supreme Court Judicially Amending the Religious Freedom Restoration Act?

  • July 10, 2014

On the heels of the deeply troubling and controversial Hobby Lobby decision, the Supreme Court on July 3, 2014 issued another disturbing order in a challenge to the Affordable Care Act ("ACA") contraception mandate. This order, coupled with the Hobby Lobby decision, indicates that the Court may be effectively striking a central requirement from an important religious liberty law – the federal Religious Freedom Restoration Act ("RFRA").  That requirement is that someone claiming protection under the law must show that his or her religious practice was substantially burdened.

In Wheaton College v. Burwell, a religiously-affiliated college that opposes certain forms of birth control is challenging the process by which they indicate to the government that they qualify for an exception to the contraception mandate.  This exception allows religious, non-profit employers such as the college, to opt out of providing employee health insurance that covers contraception.  But, ironically, the college claims that applying for this exception (which involves completing a two-page government form) violates its rights under RFRA, which was the same law that for-profit corporations successfully used to challenge the mandate in the Hobby Lobby case. In the July 3 order, the Court employed a rarely used legal mechanism to temporarily block implementation of the exception while the case is still under appeal.

RFRA requires the federal government to demonstrate the most stringent constitutional standard when it imposes a "substantial", as opposed to an incidental or minor, burden on a person’s religious exercise.  As ADL pointed out in its amicus (friend-of-the-court) brief to the Supreme Court in the Hobby Lobby case, RFRA’s use of the term substantial is not an accident, but was included to make clear that the statute’s strong protections could not be triggered by incidental burdens on religion.  In fact, the Senate Report on RFRA states that Congress added the term so that the law "would not require [a compelling government interest] for every government action that may have some incidental effect on religious institutions." 

Based on this report and other precedent, the brief ADL joined in the Hobby Lobby case argued that the secular, for-profit corporate plaintiffs were not eligible for RFRA’s protections because, among other reasons, any burden on their religious exercise was incidental and not substantial.  Unfortunately, the Court did not agree with ADL’s argument.  It ruled that application of the contraception mandate to the corporations substantially burdened their religious exercise and violated RFRA.

The Court’s subsequent action in the Wheaton College case rendered this misguided conclusion even more ominous. 

For 72 hours, it appeared that the five Justices in the Hobby Lobby majority viewed the contraception mandate exception for religious, non-profits challenged in the Wheaton College case as an acceptable accommodation under RFRA.  After all, the Court had explicitly cited the government’s religious non-profit accommodation as a system that "constitutes an alternative that achieves all the Government’s aims while providing greater respect for religious liberty." 

Although the order in the Wheaton College case is not a final ruling, it appears that the Court ignored its own guidance from Hobby Lobby.  Indeed, the order raises a serious concern that the Court is effectively rewriting RFRA so that its protections apply to any incidental burden on religious exercise. As Justice Sotomayor pointed out in her defiant Wheaton College dissent, "[a]fter expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now … retreats from that position." 

Justice Sotomayor also expressed the strong view that the exception could not constitute a substantial burden on religion.  The exception merely requires the college to sign a two-page document for a third-party to administer, provide and pay for contraceptive services.  Based on this minimal imposition, Justice Sotomayer concluded that "[i]t may be that what troubles Wheaton is that it must participate in any process the end result of which might be the provision of contraceptives to its employees. But that is far from a substantial burden on its free exercise of religion. … [T]he Court’s grant of an injunction in this case allows Wheaton’s beliefs about the effects if its actions to trump the democratic interest in allowing the Government to enforce the law" (emphasis added).

The Constitution’s Free Exercise Clause and America’s religious diversity are great strengths.  But for our pluralistic democracy to properly function, adherents of all faiths must be willingly to accept minimal intrusions on religious beliefs.  The Court’s broad reading of RFRA suggests that the invocation of faith can be used as a sword to opt out of federal laws and impose corporate owners’ religious beliefs on others – no matter how trivial the burden.  The Court’s failure to uphold what seemed to be Hobby Lobby insufficient limiting principles disturbs our nation’s delicate constitutional balance by undermining civil rights and equal treatment for all.