Understanding Religious Accommodations and the Hobby Lobby Decision

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Illustration by David Plunkert

The most controversial case in the Supreme Court last year was Burwell v. Hobby Lobby. In that case, business owners with a sincere religious belief against assisting in what they regard as the taking of human life asserted a right under the federal Religious Freedom Restoration Act (RFRA) not to be compelled to provide health insurance coverage for abortion-inducing contraceptive drugs. Since the case came down, the idea that Americans with religious conscientious objection should be excused from compliance with some laws that apply to everyone else has become even more contested. Enactment of state religious liberty laws similar to the federal RFRA in Indiana and Arkansas aroused nationwide opposition (and support). In the last issue, I wrote the first part of a two-part essay explaining why I think the controversy over Hobby Lobby is more political rather than legal—why the Supreme Court’s decision was an utterly unsurprising application of the law. The first part was about why religious freedom claims can be brought by business owners even when their companies operate through corporate form. In this part, I will discuss the claim itself. The Affordable Care Act, also known as “Obamacare,” allowed the Department of Health and Human Services to designate certain forms of health care coverage as mandatory. The administration chose to require plans to provide a full range of contraceptives, including some that are regarded as abortion-inducing drugs, without contribution or co-payment (unlike most prescription drugs, which entail co-payments). It exempted a narrow range of religious institutional employers—essentially houses of worship—from this mandate. After a firestorm of criticism, the administration crafted what it called an “accommodation” for other nonprofit religious institutions, such as religious colleges, hospitals, or charities, finding a way to provide full contraceptive coverage to their employees without requiring the employers to pay for it. Religious accommodations have long been a part of American law, covering such varied issues as military conscription, sacramental wine, performance of abortions by doctors or nurses, Islamic banking, Sunday closing laws, copyright, blood transfusions, jury service, school gym uniforms, yarmulkes in the military, prison grooming regulations, drug laws, photographs for driver’s licenses, work holidays, zoning laws, Social Security, bankruptcy, and meat inspection. One scholar identified more than 2,000 separate accommodations for religious practices in federal and state statutes. The federal RFRA requires accommodation of any “substantial burden” imposed by government on the exercise of religion except where the government can prove it is the least restrictive means of achieving a compelling governmental interest.

The Hobby Lobby case raised three questions: (1) Is the mandate to purchase insurance coverage for abortion-inducing drugs a “substantial burden” on the exercise of religion by a business owner who believes those drugs entail the taking of innocent human life? (2) If so, does that mandate serve a “compelling governmental interest”? (3) If so, is the mandate the least restrictive means of achieving that governmental interest?

The administration lawyers argued that the contraceptive mandate is not a substantial burden because the causal chain between the purchase of insurance and the taking of life is “too attenuated.” The Court majority rejected that argument—rightly, in my opinion—because what violates a person’s religion is for that person to decide, subject only to a sincerity test. The Court relied on an earlier (8-1) decision in which a religious pacifist refused to work in a steel foundry producing sheet metal that would be sold to another company and used in the manufacture of tank turrets. If the pacifist’s claim was not too attenuated, neither was Hobby Lobby’s.

Does the mandate serve a “compelling” governmental purpose? The Court majority assumed (without deciding) that it did.

That leaves the less restrictive alternative. Here the government was hoist by its own petard. Having argued that religious nonprofits could be accommodated with no inconvenience to the covered employee, the government had no reason why the same accommodation could not be made to the handful of businesses with a similar claim of conscience. As both the majority and Justice Kennedy noted, Hobby Lobby’s employees can receive full contraceptive coverage under the accommodation, without requiring the employer to pay for it. (Lower courts are now deciding whether the accommodation is sufficient to satisfy RFRA, but no one doubts it is less restrictive than the mandate.)

Nothing in the Court’s reasoning in Hobby Lobby was out of the ordinary. Indeed, the Court has applied essentially the same sort of analysis in two other cases—one about hallucinogenic drugs and one about prison grooming regulations—reaching a unanimous judgment in favor of the religious claimants in both. The unusually negative reaction to Hobby Lobby, I believe, was based on political antagonism toward the particular result, rather than on disagreement with its legal reasoning or opposition to religious accommodations in general. And Congress is free to change the result at any time, if it wishes, because the decision was based on a statute and not on the First Amendment.  SL