Last week the 10th Circuit Court of Appeals gave Hobby Lobby the go-ahead to challenge the Affordable Care Act’s contraception mandate. In due course, the Supreme Court may well decide that the federal government cannot require for-profit companies to provide such coverage against their asserted religious principles.
If so, it will in all likelihood not be because the mandate violates the companies’ First Amendment right of religious free exercise. How’s that?
The principal basis for Hobby Lobby’s case is the Religious Freedom Restoration Act (RFRA), a 20-year-old law passed in order to override the Supreme Court’s Smith decision, which (per Justice Scalia) decided that a neutral law of general applicability, i.e. one that doesn’t single out a religious practice, couldn’t be challenged as a violation of religious free exercise. RFRA was intended to permit such challenges, but it was slapped down by the Court in Boerne (1997).
However, Boerne only applied to the states. The Court has allowed RFRA to apply to the federal government, on the grounds that Congress has the right to carve out broad exemptions to laws it has itself passed. In other words, by statute (i.e. RFRA) the federal government can allow religious exemptions to be enforced against its own neutral, generally applicable laws, but it can’t force state governments to allow such exemptions to their neutral, generally applicable laws.
The long and the short of it is that, in the relatively near future, Hobby Lobby and other such companies may be entitled to withhold contraception coverage under the ACA, but not be entitled to withhold it in states that require the coverage — currently 28 of them. Religious freedom would thus mean one thing federally and another thing in the states.
That’s happened before, of course. Initially, the religion clauses of the First Amendment applied only to the federal government. States like Massachusetts and Connecticut, which wanted to retain their forms of religious establishment, had every right to do so. It wasn’t until the middle of the 20th century that those clauses were formally made applicable to the states via the 14th Amendment.
But after over half a century of living with idea that religious liberty is uniform throughout the United States, understanding that it isn’t will take some getting used to.