Home inFocus Ideas for a New Congress (Winter 2015) Avoiding Conflict: Religious Liberty and Regulation

Avoiding Conflict: Religious Liberty and Regulation

Richard T. Foltin Winter 2015

On June 30, 2014, the U.S. Supreme Court handed down its decision in the consolidated cases of Burwell v. Hobby Lobby Stores and Conestoga Wood Products v. Burwell — popularly referred to as the Hobby Lobby case. That decision has been hailed by some as a vindication of religious liberty and condemned by others as allowing employers to engage in an imposition of their religious beliefs on the interests and rights of employees. A third view suggests that the decision is far narrower than one might judge from the heated rhetoric. What is certain is that the developments in, and the debate over, Hobby Lobby grow out of a profound debate as to the intersection of religious liberty and other crucial rights and interests.

Religious Freedom Restoration Act

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA) by overwhelming majorities in both houses, reflecting a widespread belief that the Supreme Court had erred in its 1990 decision in Employment Division v. Smith setting forth what many regarded as a crabbed reading of the protections to be accorded the free exercise of religion under the First Amendment. RFRA enacted legislatively what had, until Smith, been understood by many to be the applicable constitutional standard, namely that a law could not be enforced so as to have the effect — even unintentionally — of imposing a substantial burden on religious practice unless justified by a “compelling state interest” that could not be satisfied by more narrowly tailored means. In Smith, the Court held that the government was not obligated to meet that high standard so long as the government’s actions were “generally applicable,” i.e., they were not taken to target particular religious conduct.

RFRA reflected a right-left consensus that the protection of religious liberty was a core American value. President Clinton said in his signing remarks, “We all have a shared desire here to protect perhaps the most precious of all American liberties, religious freedom.” The Founders, he said, “knew that there needed to be a space of freedom between Government and people of faith that otherwise Government might usurp.” RFRA, he noted, “basically says … that the Government should be held to a very high level of proof before it interferes with someone’s free exercise of religion.”

The broad consensus behind RFRA notwithstanding, the Supreme Court ruled in 1997, in the case of City of Boerne v. Flores, that Congress had exceeded its authority under the Fourteenth Amendment in enacting RFRA insofar as the law purported to regulate action by the states. RFRA continued to be applicable to the federal government, as an exercise of congressional plenary authority. Following the Boerne decision, a bill was introduced that would have sought to apply the RFRA standard to the states by an alternative route based on the Spending and Commerce clauses of the Constitution, but it died in Congress. A cause that had garnered broad support just several years earlier, and that President Clinton had told us reflected deep American values, was now facing stiff opposition.

The Consensus Frays

What happened?

In the years after RFRA’s passage, cases had begun to come to the fore in which landlords of small properties sought to be exempted from state and local laws prohibiting housing discrimination on the basis of marital status — based on their religious objections to renting apartments to unmarried couples. Looking at those cases, an increasing number of civil rights groups began to express concern that the broad RFRA standard could undermine other fundamental constitutional interests, in particular, that of ensuring equal protection under the law. Those groups pointed to the implications of the marital status cases for a range of other situations, including those in which landlords might want to refuse to rent to same-sex couples, notwithstanding state or local laws prohibiting housing discrimination on the basis of sexual orientation.

This growing opposition to legislating a broad standard of protection for religious free exercise, at least without carving out an exception for civil rights laws, was by no means uniform. Many progressive groups within the religious community remained allied with conservative compatriots in asserting that any categorical exception in a bill designed to protect religious liberty, even one aimed at safeguarding civil rights, was not necessary and would have a detrimental impact on religious freedom. These defenders of the RFRA standard pointed out that there were myriad other interests that might be singled out for special exclusion from RFRA; the only way to safeguard the principle of broad protection for the free exercise of religion, while also protecting strong government and societal interests, was to rely on the courts to apply the “compelling interest” test on a case-by-case basis. On the civil rights front, these advocates argued, the courts would, in the vast majority of cases, vindicate the state’s interest in protecting individuals from invidious discrimination, even in the face of a religious objection.

The interceding years have seen, if anything, an intensification of opposition by civil rights groups to enactment of broad religious accommodation protections, whether at the federal or the state level — accompanied, on the other side, by flamboyant rhetoric by some advocates of this legislation of an ostensible “war on religion” by policy makers. This dynamic has come to its apotheosis in the wake of Hobby Lobby.

Hobby Lobby

Under regulations promulgated by the Department of Health and Human Services (HHS) pursuant to the Affordable Care Act (ACA), employers are required, with some exceptions, to include free coverage for contraceptive services in their employees’ health insurance plans. The regulations issued by HHS entirely exempted churches from that obligation. After an outcry over an initial version of the rules that would have subjected religiously–affiliated nonprofits to the mandate, it also provided an alternative mechanism under which those services could be provided to employees of a religiously-affiliated nonprofit (such as a hospital or a charity) without cost to the organization and outside of its insurance policy, provided it submitted an HHS-required form.

Even after tweaking, the HHS regulations brought strong protests — and lawsuits — from a number of religiously-affiliated nonprofits, which asserted that compliance with the regulatory work-around would still make them morally complicit in a religiously prohibited activity. These lawsuits invoked RFRA, which, as noted above, remains in place as respects application of federal law.

Moreover, no religious accommodation was provided to for-profit employers — leading the owners of two closely-held corporations, Hobby Lobby and Conestoga, also to file lawsuits, asserting that they were entitled under RFRA to be exempted from that portion of the contraceptive mandate requiring them to provide coverage for four particular forms of contraception to which they had religious objections.

In Hobby Lobby, the Supreme Court, with Justice Alito writing for the five-Justice majority, did not reach the “compelling interest” question. Assuming that the mandate did serve a compelling interest, the Court nevertheless ruled for the claimants because, the Court found, the Government had failed to show that enforcement of the mandate was the least restrictive means of furthering that interest. The Court pointed to the accommodation already afforded to religiously-affiliated organizations as a demonstration of how the interests served by the contraceptive mandate could be implemented without impinging on the claimants’ religious conscience.

The Court went out of its way to underline that it did not follow that an employer would be successful in a RFRA defense to other insurance-coverage mandates, such as coverage for blood transfusions, or to anti-discrimination laws. The Court also distinguished tax cases as not analogous because “there simply is no less restrictive alternative to the categorical requirement to pay taxes.”

Those assurances notwithstanding, critics of the decision, not to mention the four dissenting Justices, argued that the logic of the Hobby Lobby decision could all too easily be extended to a slew of other areas. Indeed, for some critics, the Hobby Lobby decision was a vindication of what they had feared all along, that religious accommodation legislation could serve as a basis for the wholesale erosion of laws serving important communal interests, not least laws targeted at ending discrimination on the basis of sexual orientation, gender, religion, and even race.

They were also — and remain — skeptical about the majority opinion’s seeming sense that it had found, in the words of Prof. Marty Lederman, a “win-win” approach under which Hobby Lobby and Conestoga’s religious liberty concerns could be addressed and the rights of employees under ACA vindicated at the same time. Many of these critics contend that the Court will be proved wrong, that the broad extension of the exemption allowed by the Court will lead to an unworkable patchwork quilt under which employees would, after all, be deprived of health care benefits or at least face costly and difficult obstacles to accessing those benefits.

Religion’s Impact on Third Parties

This perceived looming problem for employees underscored for those critics an essential flaw in the Hobby Lobby decision, namely the majority’s apparent disregard for a principle repeatedly articulated by the Supreme Court that religious accommodation becomes constitutionally questionable when it has an adverse effect on third parties. In addition, these critics argue, the Administration’s alternative mechanism may still fail to address the religious objections of Hobby Lobby and other claimants — as evidenced by the ongoing cases brought by religiously-affiliated nonprofits who contend that they have a religious objection to filling out the HHS form or even to notifying the Government in writing of their objection — because doing so in and of itself makes them morally complicit in an activity that violates their religious beliefs.

A key question will be whether the Court holds true to the logic of its Hobby Lobby analysis. Will it be willing to say at some point there is no less restrictive alternative available, and the employer will have to acquiesce even in the face of a religious objection?

It is not surprising that bills have already been introduced in Congress that would limit RFRA’s scope. Troublingly, there has even been questioning in some quarters of the underlying principle behind RFRA — that a pluralistic society ought to find a way to allow those with religious beliefs at odds with prevailing societal norms to nevertheless be able to function, to the maximum extent feasible, as fully involved and welcome members of our society.

There have been those who, concerned about the potential undermining of a crucial protection for religious liberty, have suggested that the Hobby Lobby decision is far narrower than the public discourse might suggest. In response to the ruling, HHS is preparing new regulations that will allow closely held for-profit companies to utilize the mechanism created for the benefit of religiously-affiliated nonprofits. As this process goes forward, it has been asserted, the workability of that accommodation will prove empirically verifiable and there will be ample opportunity to seek relief in Congress or in the courts should it prove, indeed, unworkable.

Marriage, Circumcision, and Other Issues

Even as Hobby Lobby has been this year’s marquee event, the conflict between religious liberty claims and equal protection principles is also playing out over the issue of marriage equality. There is no serious expectation that clergy will be forced to perform marriages contrary to their faith, but, as same-sex marriage increasingly becomes normalized, religious institutions will face the same conundrum vis-à-vis same-sex marriage as they have regarding the HHS mandate: Will they be compelled, for instance, to make their facilities available for same-sex wedding ceremonies, even if this violates their beliefs? Might they even be at risk of losing their tax-exempt status if they do not? And what of small businesses, such as florists, bakers, and photographers? Can those with religious objections to same-sex marriage be allowed to decline to provide their services in the context of a wedding ceremony to which they have religious objections?

On the latter question, small businesses have already begun to lose such cases — and, under the powerful paradigm of equal protection, so may religious institutions. A religious institution’s failure to recognize a same-sex marriage could come to be seen not as a core constituent of that institution’s identity, to be tolerated even when one disagrees with the underlying belief system, but rather as an exemplar of invidious discrimination.

As Prof. Douglas Laycock observed in a 2011 law review article, the heat generated by issues having to do with reproductive rights and sexual orientation is unlike that associated with other religious conflicts. “[E]ach side,” he wrote, “wants to regulate much that the other side considers private, personal, and essential to identity. The pro-life and traditional marriage side wants to eliminate abortions and restrict the personal lives of gays and lesbians. The pro-choice and gay rights groups want conservative believers not just to leave them alone, but to affirmatively assist with abortions and same-sex relationships — or else leave any occupation that might ever be relevant.”

As the two sides contend on this seemingly irreconcilable conflict of values, it is important to recollect that, while not all conflicts arising from the intersection of religious exercise and equal protection principles are so epochal, the legal principles emerging from this contention will have implications in other areas.

Efforts were made in San Francisco to prohibit circumcision — ostensibly out of neutral concerns about protecting the bodily integrity of the child, a concept resonant with equal protection concerns. This initiative, which could have had the result of preventing Jews residing in that city from engaging in the ancient religious observance of brit milah, was turned back, at least for the time being, when a California court found it an inappropriate effort to regulate medical practice. The Jewish community may have seen this as an issue implicating fundamental concepts of religious liberty, but the shrunken scope of the Free Exercise Clause under Smith (since RFRA is not available) leaves in question whether a federal constitutional challenge would have been successful. And, several years ago, there was an effort to compel a Jewish health care provider in New York State to remain open on the Sabbath based on the claim that the failure to provide services on Saturday was somehow an act of discrimination against community members who were not Jewish.


The challenge faced by society is how to reconcile its important interests, which manifestly include protecting individuals against discrimination, with the fact that there are religious institutions and individuals who march to a different drummer. This means granting the legitimacy, if not the correctness, of religious conscience, even as it is clearly not the case that a conflict between government regulation and religious belief must always lead to an exemption. At the same time, religious actors have their own responsibilities — to engage in introspection as to whether what is at stake is truly an intrusion on their own religious observance — and to avoid demands that smack of imposing their beliefs on others.

It remains crucial that we have in place constitutional and legislative standards that give due regard to religious practice and belief, while recognizing that there are other, sometimes compelling interests, that will mean that an accommodation simply cannot be provided. One rule need not apply to all. Thus, in the context of religious institutions, it may be that institutions whose primary task is religious teaching should receive a broader zone of exemption than institutions that are religiously-affiliated but that mainly provide a secular service, with both of these types of institutions treated differently from organizations that place themselves in the stream of for-profit commerce. And it can make a difference whether government funding is implicated or whether a religious organization is utilizing its own funds. Our future as a tolerant, diverse society is dependent on recognizing that both sides in these conflicts bring to bear aspects of their identity that are “private, personal, and essential to identity.” Whatever the legal standard, and whatever the result in specific cases, we are likely to see an ongoing and debilitating conflict if regulators and interested parties — and religious communities — fail to bring to bear the same spirit of tolerance for others that they expect for themselves.

Richard T. Foltin is Director of National and Legislative Affairs in the Office of Government and International Affairs of the American Jewish Committee (AJC). This article is based in part on “Reconciling Equal Protection and Religious Liberty,” which appeared in Human Rights, Vol. 39, No. 2 (2013). The views expressed are the author’s own and are not necessarily the views of AJC.