The Slippery Slope of Religious Accommodation and How RFRA Is Teaching Legislators to Deny Accommodations in the First Place


The phrase “be careful what you pray for” comes to mind when one reads the Fifth Circuit’s recent decision interpreting the Religious Freedom Restoration Act (“RFRA”) involving a Native American religion in Texas that believes that eagle feathers are sacred, McAllen Grace Brethren Church v. Salazar.Eagles, our national symbol, are an endangered species protected under the Bald and Golden Eagle Protection Act (“BGEPA”). The law does have, however, a religious accommodation for federally recognized tribes to obtain eagle feathers and even whole birds for religious purposes through a permit system.

The Fifth Circuit on Eagle Feathers and RFRA

The issue in the Fifth Circuit was that the Native American religious group, which believes in the sacredness of eagle feathers, was not federally recognized, and, therefore, filing for a permit under BGEPA was futile. Without a permit, their acquisition of eagle feathers even for a religious ceremony was a crime. They invoked RFRA.

The question is whether RFRA trumps the BGEPA’s distinction between federally recognized tribes and others. Given the historic relationship between the federal government and certain sovereign tribes, it is not an easy question. The appellate court rightly sent the case back to the district court to give the parties a chance to build a record on whether the federal government has a compelling interest that is achieved in the least restrictive means (the RFRA standard) in accommodating federal tribes but not other groups or individuals who hold the same belief.

If the district court rules against the government, there could be a potential split among federal courts on the issue. Several years earlier, the Ninth Circuit in U.S. v. Hugs held that the permit system satisfied RFRA’s requirements and, therefore, convictions of Native American believers who hunted and killed eagles without a permit were upheld. We shall see whether the district court reaches the same conclusion.

One Accommodation Leads to Another

But the potential split is not really the most interesting aspect of the case. Instead, this decision, along with the Supreme Court’s two RFRA decisions, Burwell v. Hobby Lobby and O Centro Beneficente Uniao de Vegetal v. Gonzales, contain similar reasoning that, ironically, could work as a disincentive for legislators to enact accommodations in the future. It is a lesson for religious lobbyists and legislators alike: in each case, an existing accommodation opened the door to tear down the law for any and all others who might object to the law, from solo believers to religious groups to for-profit corporations. That means, when RFRA is in the picture, legislators cannot be confident that a legislative accommodation will have a narrow effect on the effectiveness of the law overall.

O Centro Beneficente Uniao de Vegetal: One Drug Leads to Another

In the O Centro case, the religious group invoked RFRA to be able to ingest during its religious ceremonies hoasca tea, which contains one of the Schedule I drugs in the Controlled Substances Act, as I discuss here. The Court explained that each of those drugs is banned, because it “‘has a high potential for abuse,’ ‘has no currently accepted medical use,’ and has ‘a lack of accepted safety for use . . . under medical supervision.’” The government responded to the RFRA claims by arguing that there was no less restrictive means of protecting against the harms of such drugs than banning them.

The Court, however, noted that the federal government had previously given a religious accommodation for the use of peyote, which is a Schedule I drug, and reasoned as follows: “If such use is permitted in the face of the congressional findings in §812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs.”

In a nutshell: where Congress created an exemption for one Schedule I drug for religious purposes, it was essentially foreclosed from later arguing against accommodation for other drugs on the list.

On this reasoning, the Churches of Meth, Heroin, and Cocaine must also be accommodated.

Hobby Lobby: Religious Organization Accommodation Requires Corporate Accommodation

The Fifth Circuit in McAllen Grace Brethren Church relied on Hobby Lobby for the proposition: “Where a regulation already provides an exception from the law for a particular group, the government will have a higher burden in showing that the law, as applied, furthers the compelling interest.” Hobby Lobby took the largest leap so far from one accommodation to another.

In Hobby Lobby, the Court considered whether the owners of the for-profit multi-billion-dollar corporation Hobby Lobby could get the benefit of RFRA and avoid the Affordable Care Act’s contraception mandate. Congress had already accommodated religious organizations and houses of worship. And the Obama Administration had accommodated non-profit religious organizations. That meant that for-profit nonreligious corporations were not accommodated.

The majority held that the existence of those accommodations for religious entities led to the conclusion, under RFRA, that there must also be an accommodation of a for-profit corporation. That is a truly remarkable leap that raises the question whether any existing accommodation can ever be limited to its legislative parameters.

Where Is the Limit?

What the Court did not articulate in these cases is the stopping point for this one-accommodation-begets-another thesis. When a religious accommodation is adopted by a legislature, the argument is typically that it can’t hurt to let these believers trump the law, because the government interest will still be largely served. For example, states require that parents vaccinate their children, because it is necessary to immunize a large percentage of the population to build the “herd immunity” needed to defeat potentially deadly diseases like polio. Some states have permitted faith-healing parents to avoid the requirement; a few non-vaccinators will not destroy the herd immunity needed to protect everyone else. The faith accommodations, though, have been expanded in some states to parents objecting on a wide variety of grounds, and herd immunity now is threatened.

I raise this example because the reasoning in the RFRA cases is burying the fact that many legislative accommodations are granted, because legislators believe that the purposes of the law will only be nibbled on the edges, not gutted. In contrast, the one-accommodation-leads-to-another reasoning has the potential to gut the law. That is what happened in Hobby Lobby, where the vast majority of organizations–from churches to religious non-profits to non-religious for-profit—can be relieved of the obligation to provide women with the full panoply of reproductive health care coverage.

This quick logic from the existence of one accommodation to its limitless extension defies common sense and shows the courts acting as shadow legislatures. Assuming lawmakers care about the policy behind the law, it also, ironically, makes a strong case for denying an exemption in the first place.

Posted in: Speech and Religion

Tags: Legal

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