Exempting Hobby Lobby and Conestoga Wood from Obamacare’s contraception mandate would be an unconstitutional establishment of religion because it would require third parties — employees of the companies — to pay to accommodate the religious views of the companies’ owners. That, in a nutshell, is the argument made by BYU law professor Frederick Gedicks and Utah Supreme Court clerk Rebecca Van Tassel in a forthcoming article in the Harvard Civil Right-Civil Liberties Law Review.
The argument turns on the nature of the Religious Freedom Restoration Act (RFRA), which provides the principal basis for the Hobby Lobby and Conestoga Wood lawsuits that the Supreme Court will adjudicate this session. RFRA was passed in 1993 to undo the limit the Supreme Court’s 1990 Smith decision imposed on judicial protection of the constitutional right of religious free exercise. Smith, the pride and joy of Justice Antonin Scalia, determined that any neutral and generally applicable law — i.e. any law not directed against a specific religious practice or practitioner — was beyond the reach of judicial redress as a violation of the Free Exercise Clause. What RFRA did was instruct the Court to employ its previous standard of adjudication, which required the government to demonstrate a compelling state interest in order to restrict religious liberty.
The Court didn’t much appreciate RFRA, and in Boerne (1997) ruled that it could not be applied to state laws. But in Gonzales (2006), the justices decided that it did provide for what’s known in the trade as “permissible accommodation” of religion with respect to federal law — the point being that if Congress wants to make an across-the-board accommodation of religion to laws it itself passes, it can do that (up to a point). But such accommodation does not (re-)establish a constitutional right to have the courts find a compelling state interest in order to sustain a law restricting free exercise, only a statutory requirement to do so.
What difference does it make? The critical point is that a statute-based claim is more easily rejected on constitutional grounds than one based on a constitutional right. Under Smith, Hobby Lobby and Conestoga Wood could not claim a First Amendment right to be exempted from the contraception mandate, and the statutory authority they do claim is highly vulnerable to the charge of violating the First Amendment’s ban on religious establishments.
To be sure, as Gedicks and Van Tassell note, Establishment Clause doctrine is widely recognized to be “unstable, inconsistent, and incoherent.” Yet the Court has shown remarkable consistency in holding that the material costs of a permissive accommodation of religion cannot be shifted to third parties who don’t share a commitment to the religious practices or beliefs being accommodated. And that’s certainly the case for thousands of women working for Hobby Lobby and Conestoga Wood who would be deprived of the benefit of contraceptive coverage without additional cost if the two companies were to be given a RFRA exemption to the mandate.
The companies contend that RFRA gives their religious liberty priority over the cost to those “who believe and live differently,” write Gedicks and Van Tassell. “But this is also a violation of ‘religious liberty’—the liberty, long protected by the Establishment Clause, to live one’s life free of the religious commitments of others. And unlike statutory claims asserted under RFRA, this liberty is protected by the Constitution.”
In other words, what Smith took away, RFRA cannot really restore.