How to Fix the Religious Freedom Restoration Act

Americans who were dismayed by the Supreme Court’s end-of-Term decision in Burwell v. Hobby Lobby have begun to move from anger to action. For example, the Obama Administration and some Democrats in Congress are proposing new legislation that would make clear that businesses owned by people with religious objections to contraception must nonetheless provide health insurance that covers its cost. And because the Hobby Lobby ruling relied on a statute—the Religious Freedom Restoration Act (RFRA)—rather than the Constitution, a legislative response is possible, at least in theory.

To be sure, with a Republican majority in the House of Representatives, and the possibility that Democrats could lose their majority in the Senate in the coming midterm elections, imminent action by Congress is highly unlikely. Nevertheless, at some point a legislative fix may be politically feasible; in the meantime, discussion of what was wrong with Hobby Lobby can inform the public and opinion leaders about how to fix RFRA when the opportunity arises.

In this column, I offer a menu of eight options, some of which could be accomplished in tandem with one or more of the others. No solution is perfect, but that is to be expected: the whole notion of religious accommodations begins from the fact that sometimes the public interest as expressed through the law conflicts with individual conscience. An accommodation, almost by definition, is a compromise between conflicting objectives.

From the First Amendment to RFRA

RFRA was enacted in 1993 with nearly unanimous bipartisan support in Congress in response to the Supreme Court’s 1990 ruling in Employment Division v. Smith. In that case, two members of the Native American Church sought permission for ritual use of peyote, notwithstanding Oregon’s law banning the drug. They cited the First Amendment’s protection for free exercise of religion. The High Court not only rejected their claim, but, in an apparent reversal of decades of free exercise jurisprudence, the majority held that the claim could not even get off the ground. Oregon’s law forbade everyone from using peyote, and such a “neutral” law that does not target religion, the Court said, raises no First Amendment concerns at all.

The Smith Court worried that granting religious exceptions to neutral laws would “permit every citizen to become a law unto himself,” but Congress thought that dismissing religious objections to neutral laws went too far in the other direction. Someone who needs peyote to perform a religious ritual is burdened in his ability to perform that religious ritual, regardless of whether the law forbidding peyote use applies to everyone or only to religious peyote users like himself. In enacting RFRA, Congress affirmed the principle that freedom of religion protects the ability to practice religion, not just to be free of discrimination on the basis of religion.

Notwithstanding the fact that “Restoration” is part of RFRA’s name, and notwithstanding the fact that one provision of RFRA specifically states the purpose to restore the pre-Smith case law, the Hobby Lobby Court held that the operative provisions of RFRA, as amended in 2000, provide broader protection for free exercise than the pre-Smith precedents did. Writing for the majority, Justice Alito concluded that there is now “a complete separation” of RFRA “from First Amendment case law.” Thus, even though the Hobby Lobby plaintiffs might have lost under the pre-Smith Free Exercise cases, they prevailed under RFRA.

Writing for herself and three other dissenters in Hobby Lobby, Justice Ginsburg argued that the majority misconstrued the 2000 amendment to RFRA. Even as amended, she argued, RFRA remained continuous with the pre-Smith case law.

Option 1: Restore the pre-Smith Test

The dissent thus points to one seemingly straightforward way to fix RFRA: Re-restore the pre-Smith case law.

The main difficulty with this approach is that the pre-Smith case law is itself unclear on many important questions, including some of the issues that divided the Court in Hobby Lobby. Thus, merely restoring the old case law might not even have the result of overruling Hobby Lobby.

Option 2: Strip Corporations of Religious Rights

Some critics argue that the central problem with the Hobby Lobby ruling is that it recognizes a right to religious freedom for corporations, but that only natural persons can practice religion. This criticism is closely related to similar complaints about the Court’s campaign finance rulings, especially Citizens United v. FEC, and therefore has some of the same problems as those complaints.

In both contexts, “depersonifying” corporations could endanger the liberty of natural persons. At a bare minimum, any such shift would need to include special rules for special-purpose corporations. After all, churches and other religious non-profit organizations typically use the corporate form. So do major news organizations.

Option 3: Withdraw Religious Protection from Businesses

In light of the foregoing, the focus on the corporate form appears to be misguided. But perhaps it points to a related distinction: between businesses and other entities. Perhaps RFRA could be amended to distinguish between religious non-profits and for-profit businesses, whether organized using the corporate form or otherwise. That is more or less what the Obama Administration itself attempted when it wrote regulations making religious non-profits eligible for exceptions from the contraception insurance mandate.

One might well think that in deciding to enter into some business—whether selling hobby products or taking wedding photographs—one accepts the conditions that the government places on the running of that business. And indeed, this principle has considerable appeal with respect to claims for religious exceptions from antidiscrimination law.

Nonetheless, the distinction between business conduct and other conduct is no magic bullet. For example, thoughtful critics of Citizens United recognize that for-profit news corporations should retain free speech rights. Likewise, one might well conclude that at least some businesses of a religious nature should have a right to religious freedom. Consider a corporate-owned chapel, a religious bookstore, or a purveyor of kosher or halal food.

A carefully drafted amendment to RFRA might distinguish between religious businesses and other businesses, but difficult line-drawing problems could arise. Suppose that a store sells mostly religious items but also has a refrigerator case from which it sells soft drinks. Any percentage cutoff (other than the unrealistic cutoff of zero or one hundred percent) will be arbitrary.

Option 4: No Right to Burden Third Parties

Perhaps the most disturbing aspect of the Hobby Lobby ruling is that it appears to elevate the religious rights of business owners above the health interests of their employees. More generally, some critics argue that religious exceptions should be given, if ever, only when doing so does not impose the claimant’s religious beliefs on others.

It is possible to read this criticism as misdirected at the Hobby Lobby decision. There, the majority explained that the plaintiffs can be accommodated without depriving their employees of contraceptive health insurance, so long as a different mechanism is used to provide it. Even in the follow-up order in Wheaton College v. Burwell—in which the Court temporarily excused a religious non-profit from having to use the official government form to register its objection—the majority stated that Wheaton’s “employees and students” could still “obtain, without cost, the full range of FDA approved contraceptives.”

Nonetheless, the Hobby Lobby opinion contains suggestions that in some future case the Court might uphold a RFRA claim, even if doing so burdens third parties. For example, the majority indicates (but ultimately does not decide) that the government might be required to replace a legal regime that burdens someone’s religion with a less burdensome regime, even at taxpayer expense. That expense, of course, is a burden on third parties.

Moreover, it is not quite accurate to say that prior case law has never upheld religious claims that burdened third parties. The leading example of a successful exceptions claim in the pre-Smith period was Sherbert v. Verner. In that case, the Court upheld the right of a Seventh-day Adventist to be treated as involuntarily unemployed because of her refusal to work on Saturdays despite the resulting increased burden on others, who were responsible for funding the benefits scheme.

Whether a religious accommodation burdens third parties, and the extent to which it does so, does still seem like a relevant consideration in evaluating a claim for a religious exception, but because no one is an island, it may be impossible to craft a bright-line rule implementing this principle. Accordingly, if Congress amends RFRA to prevent religious claimants from imposing their beliefs, or the costs of their beliefs, on others, it may have to do so through a somewhat indeterminate standard.

Option 5: Repeal RFRA

None of the options discussed thus far would be wholly unproblematic. Accordingly, one might think that the best option would be simply to repeal RFRA, as urged by my fellow Verdict columnist, Professor Marci Hamilton. In a recent column, she contends that Hobby Lobby is faithful to RFRA and precisely for that reason, it shows that RFRA goes too far. She thus proposes an “end it, don’t mend it” approach.

Hamilton’s proposal has the virtues associated with the Court’s Smith decision—but also its chief vice: As noted above, neutral laws sometimes conflict with religious obligations, and a society that values freedom of religion will attempt to accommodate religious obligations when it can do so without unduly sacrificing public policy goals. The Smith case itself is a good example: Whatever marginal benefit Oregon derived from a total ban on peyote use, rather than a ban with religious exceptions, appeared to be outweighed by the cost to members of the Native American Church when they were forbidden from taking part in an important sacrament.

Option 6: Redefine Neutrality

Even if one thinks that Professor Hamilton’s proposal to repeal RFRA outright goes too far, it may nonetheless be worth asking whether the whole approach of RFRA is wrong. Is there some way to legislate around Smith without opening the door to a potentially limitless number of claims?

Perhaps there is. Maybe the problem in Smith was not that the Supreme Court limited the Free Exercise Clause to an anti-discrimination principle. Maybe instead the problem was that the Court did not even correctly apply the anti-discrimination principle.

The Oregon law specifically forbidding peyote use was “neutral” in the sense that it applied to anyone who wished to use peyote for any reason. But viewed in wider perspective, the body of Oregon law as a whole was not neutral: It criminalized peyote, a mind-altering substance used ritually by a vulnerable minority religion, but did not criminalize alcohol, a mind-altering substance used ritually by more numerous, more politically powerful groups (Catholics and Jews).

Accordingly, RFRA might be replaced with a more robust, equality-focused law. Such a law would cast the courts in the relatively comfortable role of defending the rights of minorities—in this instance, religious minorities.

Option 7: Add Non-Religious Obligations of Conscience

To this point I have discussed options that would cut back on RFRA, but in at least one way, we might think that RFRA is insufficiently protective. RFRA protects people who have sincere religious objections to complying with federal law, but not those who have sincere objections of conscience that are not rooted in religion. Yet people who have such non-religious objections can feel squeezed between the law and their conscience in much the same way that people with religious objections feel squeezed.

For example, people may believe it is wrong to participate in providing abortions because their religion condemns abortion, or they may simply believe that abortion is immoral because it ends a human life. Federal law accommodates such non-religious conscience with respect to abortion in some contexts, but RFRA does not extend similar protection to non-religions conscience in general.

Accordingly, one way to fix RFRA would be to expand it to cover non-religious conscience. Indeed, although the Supreme Court has held that religious-only exceptions are permitted by the Establishment Clause, one might think that basic fairness requires treating sincere moral beliefs the same, whether they come from religious teaching or elsewhere.

Option 8: Do Nothing

Finally, Congress could do nothing, leaving the Hobby Lobby interpretation of RFRA in place. This approach of not fixing RFRA would rest on the premise that it ain’t broke.

Because the body of commentary criticizing Hobby Lobby is already enormous, I see no need to elaborate the reasons I do not favor the do-nothing option. Perhaps the best that can be said for this option is that, given the current composition of Congress, it is by far the most likely to occur—at least in the short run.

Eventually, however, Congress will inevitably change. If and when it revisits the question of religious exceptions, it will have plenty of options from which to choose.

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