Sometimes to properly understand something
it is necessary to begin at the beginning. Here the beginning is to be found in
the Supreme Court case of Sherbert v. Verner, 374 U.S. 398 (1962)
Adell Sherbert “became a member of the
Seventh-day Adventist Church in 1957, at a time when her employer, a
textile-mill operator, permitted her to work a five-day week. It was not until
1959 that the work week was changed to six days, including Saturday, for all three
shifts in the employer’s mill.” [1]
She “was discharged by her South Carolina
employer because she would not work on Saturday, the Sabbath Day of her faith. When
she was unable to obtain other employment because from conscientious scruples she
would not take Saturday work, she filed a claim for unemployment compensation
benefits under the South Carolina Unemployment Compensation Act. That law”
provided “that, to be eligible for benefits, a claimant must be ‘able to work
and…available for work’; and, further, that a claimant is ineligible for
benefits ‘[i]f…he has failed, without good cause…to accept available suitable
work when offered him by the employment office or the employer…’
“The…Employment Security Commission, in
administrative proceedings under the statute, found that” Ms. Sherbert’s “restriction
upon her availability for Saturday work brought her within the provision
disqualifying for benefits insured workers who fail, without good cause, to
accept ‘suitable work when offered…by the employment office or the employer….’”
Ms. Sherbert challenged this in the state courts on the ground that it violated
her right to the free exercise of her religion under the First Amendment. The
case made its way to the South Carolina Supreme Court which held that Ms.
Sherbert’s “ineligibility infringed no constitutional liberties because” it
placed “’no restriction upon’” her “’freedom of religion nor’” did “’it in any
way prevent her in the exercise of her right and freedom to observe her
religious beliefs in accordance with the dictates of her conscience.’” It just
meant that she had to work on Saturday, in violation of a tenet of her
religion, or lose the right to unemployment benefits.
The matter went before the United States
Supreme Court on appeal, which reversed the state court. “The door of the Free
Exercise Clause stands tightly closed against any governmental regulation of
religious beliefs as such,” the Court said. “Government may neither
compel affirmation of a repugnant belief…nor penalize or discriminate against
individuals or groups because they hold religious views abhorrent to the
authorities…nor employ the taxing power to inhibit the dissemination of
particular religious views….”
But the Court recognized that this
constitutional protection is not absolute. The Court had previously “rejected
challenges under the Free Exercise Clause to governmental regulation of certain
overt acts prompted by religious beliefs or principles, for ‘even when the
action is in accord with one’s religious convictions, [it] is not totally free
from legislative restrictions.’” However, the “conduct or actions so regulated”
had “invariably posed some substantial threat to public safety, peace or order.”
Human sacrifice would have been an extreme example of the sort of religious
practice subject to prohibition under this rule.
Ms. Sherbert’s “conscientious objection to
Saturday work,” however, clearly constituted “no conduct prompted by religious
principles of a kind within the reach of state legislation.” It involved no “substantial
threat to public safety, peace or order.” And there was no doubt that there was
government infringement of the free exercise of her religion since it was
understood at that time that if “’the purpose or effect of a law is to impede
the observance of one or all religions or is to discriminate invidiously
between religions, that law is constitutionally invalid even though the burden
may be characterized as being only indirect.’” Not just the purpose, but the
effect as well.
“Here not only” was “it apparent that” Ms.
Sherbert’s “declared ineligibility for benefits” derived “solely from the
practice of her religion, but the pressure upon her to forego that practice”
was “unmistakable. The ruling” forced “her to choose between following the
precepts of her religion and forfeiting benefits, on the one hand, and abandoning
one of the precepts of her religion in order to accept work, on the other hand.
Governmental imposition of such a choice put the same kind of burden upon the
free exercise of religion as would a fine imposed against” her “for her
Saturday worship.”
Having made that determination, the Court
next considered “whether some compelling state interest enforced in the eligibility
provisions of the South Carolina statute” justified “the substantial
infringement of” Ms. Sherberts’s “First Amendment right.” This is because the
Court considered it “basic that no showing merely of a
rational relationship to some colorable state interest would suffice; in”
such a “highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering
paramount interests,’” could “’give occasion for’” a “’permissible limitation,’….”
South Carolina could find no such
justification. It suggested “no more than a possibility that the filing of
fraudulent claims by unscrupulous claimants feigning religious objections to
Saturday work might not only dilute the unemployment compensation fund but also
hinder the scheduling by employers of necessary Saturday work.” But there had
been “no proof whatever to warrant such fears of malingering or deceit as those
which” South Carolina advanced. Moreover, “even if the possibility of spurious
claims did threaten to dilute the fund and disrupt the scheduling of work, it
would plainly” have been incumbent on the state “to demonstrate that no
alternative forms of regulation would combat such abuses without infringing
First Amendment rights.”
The rule that emerged from the Sherbert
case was that, in Free Exercise of religion cases, courts were to first
determine whether the right to freedom of religion had been infringed. If it
had, the determination was to be made whether the infringement was necessitated
by a “compelling state interest,” which had to be more than “a rational
relationship to some colorable state interest.” It had to involve serious
matter that endangered “paramount interests.” Only then could a Free Exercise
interest be regulated, and that only if the state could demonstrate that there
was no alternative form of regulation that could deal with the issue without infringing
on the free exercise of religion.
But in 1990 a sea change took place with
the case of Employment Division v. Smith, 494 U.S. 872 (1990). [2] This case
involved an Oregon law that prohibited “the knowing or intentional possession
of a ‘controlled substance’ unless the substance” had “been prescribed by a
medical practitioner.” One of those controlled substances was peyote.
“Alfred Smith and Galen Black…were fired
from their jobs with a private drug rehabilitation organization because they
ingested peyote for sacramental purposes at a ceremony of the Native American
Church, of which both are members. When respondents applied to” the “Employment
Division…for unemployment compensation, they were determined to be ineligible
for benefits because they had been discharged for work-related ‘misconduct.’”
Smith and Black challenged this ruling on Free Exercise grounds, and the case
eventually made its way to the U.S. Supreme Court.
The Court in an apparent, but not
explicit, rejection of the Sherbert case rejected the contention of
Smith and Black “that their religious motivation for using peyote” placed “them
beyond the reach of a criminal law that” was “not specifically directed at
their religious practice, and that is concededly constitutional as applied to
those who use the drug for other reasons. They” asserted, “in other words, that
‘prohibiting the free exercise [of religion]’ includes requiring any individual
to observe a generally applicable law that requires (or forbids) the
performance of an act that his religious belief forbids (or requires).”
Of course, under Sherbert, that is
exactly the result that should have obtained. Sherbert held that there
was an infringement of the First Amendment where the “purpose or effect” of a
law was to prohibit the free exercise of religion. But Smith held that
there was no First Amendment violation at all so long as the purpose of the law
wasn’t directed at religion, and the effect was of no consequence. Therefore,
there was no reason to consider whether the state had a compelling interest in
applying the law to members of the Native American Church. The upshot was that,
from that point, a religious practice was protected until the government
decided that it wasn’t, so long as it did it by means of a law that applied to
everyone. A state could prohibit circumcision on ostensible medical grounds,
and the fact that the law struck directly at a Jewish practice would be of no
consequence. That’s a helluva thing to do to the First Amendment.
It’s noteworthy that the majority opinion
in the Smith case was written by Justice Antonin Scalia, who during his life
was called a “conservative.” The dissenting justices were Justice Harry
Blackmun, who wrote the majority opinion in Roe v. Wade; Justice
William Brennan, who had written the majority opinion in Sherbert, and is known
to history as a “liberal,” who had opined against the death penalty; and
Thurgood Marshall, another “liberal,” who had successfully argued the case in Brown
v. Board of Education.
The widespread response to Smith
was outrage. [3] Both religious
and civil liberties groups considered it an assault on the constitutional right
to freedom of religion. Minority religions were most endangered, of course, but
even some Christians would be prevented from taking communion by a generally
applicable town ordinance against the consumption of alcohol. And, as expected,
both federal and state courts began applying Smith to deny Free Exercise
claims.
A push for federal legislation ensued,
backed by diverse groups such as the National Association of Evangelicals, the
American Civil Liberties Union, and the evangelical Concerned Women for
America, along with many other groups. The idea was to restore the Sherbert
test by congressional enactment, preventing governmental restriction of the
free exercise of religion unless a compelling state interest could be shown.
Eventually a bill was introduced in the
House of Representatives by Rep. Charles Schumer (D-NY)—yes, that Charles
Schumer—which passed by voice vote. A similar bill was introduced in the Senate
by Edward Kennedy (D-Mass)—yes, that Edward Kennedy, but the Senate passed the
House version instead by a vote of 97 to 3 [4], and signed into
law by President Bill Clinton. The law, the Religious Freedom Restoration Act
(hereinafter “RFRA”) provides that
“Government may substantially burden a
person’s exercise of religion only if it demonstrates that application of the
burden to the person—
“(1) is in furtherance of a compelling
governmental interest; and
“(2) is the least restrictive means of
furthering that compelling governmental interest.” [5]
And, thus, for federal cases, the Sherbert
test was legislatively reinstated.
The RFRA got a major test in the Supreme
Court case of Burwell v. Hobby Lobby Stores, decided on June 30,
2014. [6] At issue in this
case were Health and Human Services (HHS) regulations requiring employee health
plans under the Affordable Care Act to cover certain contraceptive methods,
including four methods that were potentially abortifacient.
Nonprofits were exempted from the
requirement if they objected to providing such coverage on religious grounds.
When the group-health-insurance issuer received notice that the nonprofit had
invoked the exemption, it was required to remove contraceptive coverage from
the employer’s plan, but then provide contraceptive coverage for the employee
at its own expense. HHS had determined that this obligation wouldn’t impose any
net expense on the issuers because of the cost savings resulting from the
services.
The case involved three closely held,
for-profit, corporations, (hereinafter, the “Hobby Lobby companies”) who
objected, on religious grounds, to providing coverage for the four potentially abortifacient
methods. A closely held corporation is one that has “more than 50% of the value
of its outstanding stock owned (directly or indirectly) by 5 or fewer
individuals at any time during the last half of the tax year,” [7] with an exception
not pertinent here.
The Court held that “that the
regulations that” imposed “this obligation”
violated “RFRA, which
prohibits the Federal Government
from taking any action that substantially
burdens the exercise
of religion unless
that action constitutes the least restrictive means of
serving a compel-ling government interest.” In doing so, it rejected “HHS’s
argument that the owners of the companies forfeited all RFRA protection when
they decided to organize their businesses as corporations rather than sole
proprietorships or general partnerships. The plain terms of RFRA,” the Court
held, “make it perfectly clear that Congress did not discriminate in this way
against men and women who wish to run their businesses as for-profit
corporations in the manner required by their religious beliefs.” To hold
otherwise, of course, would have exalted form over substance, particularly
since the holding was not extended to include corporations that were publicly
traded, or, indeed, not closely held.
“Congress provided protection for people like”
the owners of the closely held corporations involved in the Hobby Lobby
case “by employing a familiar legal fiction: It included corporations within
RFRA’s definition of ‘persons.’ But it
is important to keep in mind that the purpose of this fiction is to provide
protection for human beings. A corporation is simply a form of organization
used by human beings to achieve desired ends. An established body of law
specifies the rights and obligations of the people (including
shareholders, officers, and employees) who are associated with a corporation in
one way or another. When rights, whether constitutional or statutory, are
extended to corporations, the purpose is to protect the rights of these
people. For example, extending Fourth
Amendment protection to corporations protects the privacy interests of
employees and others associated with the company. Protecting corporations from
government seizure of their property without just compensation protects all
those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations
like Hobby Lobby…protects the religious liberty of the humans who own and
control those companies.”
Now it was clear that the regulation
infringed on the religious freedom of the owners of these closely held
companies. But assuming that the government was, by the regulation, furthering
a compelling governmental interest, it remained to be determined whether it was
utilizing the least restrictive means.
That case couldn’t be made, because the
HHS was already providing an alternative means for those entities that were
specifically exempted by the regulation. The insurer was to separately issue
coverage without cost to the religious non-profit entity or to the employee beneficiaries.
Thus, contrary to polemic to the contrary, women who worked for religious
companies weren’t being deprived of any contraceptives, and that free of cost.
The Hobby Lobby companies thus prevailed,
and it was precisely the result that would have been obtained under the Sherbert
test. The irony here is that when the Smith case was decided, it was the
“liberal” justices who dissented, and “liberal” members of Congress who
introduced the RFRA in response. Now it was the “conservatives” championing the
RFRA, and the “liberals” who were objecting. As the adage goes, it all depends
on whose ox is being gored.
This brings us to Zubik v. Burwell
[8], a 2016 Supreme
Court case, that was actually a consolidation of a number of cases, to include,
most famously, Little Sisters of the Poor Home for the Aged, Denver,
Colorado v. Burwell. At this point the federal regulations required companies
“to cover certain contraceptives as part of their health plans, unless” they
submitted “a form either to their insurer or to the Federal Government, stating
that they” objected “on religious grounds to providing contraceptive coverage.”
The Zubik parties alleged “that submitting this notice substantially” burdened
“the exercise of their religion, in violation of the Religious Freedom
Restoration Act….”
In supplemental briefing, the government
confirmed that it would be feasible to arrange contraceptive coverage for the
employees without requiring the Zubik parties to provide the notice they
objected to. At the same time, the Zubik parties “clarified that their
religious exercise” was “not infringed where they” needed “’to do nothing more
than contract for a plan that’” did “’not include coverage for some or all
forms of contraception,’ even if their employees” received “cost-free
contraceptive coverage from the same insurance company.” The case was remanded
to the lower courts to work out the details.
Last month, the contraceptive mandate was
in the news again. The case was Little Sisters of the Poor Saints Peter and
Paul Home v. Pennsylvania [9], only this time
the RFRA wasn’t in issue. The question was whether new regulations, designed to
accommodate the Zubik case, were properly enacted. The Court decided
that they were, and that was the end of the matter. Some partisans are hoping
that there will be new regulations soon, a little tougher on the Little Sisters
of the Poor. But that is a fond hope, as long as the Hobby Lobby case
remains good law. They can attempt to repeal the RFRA on which Hobby Lobby
was decided, but that would be significantly overplaying their hand. It isn’t likely
that the spectacle of the Little Sisters of the Poor being forced to close
their old age facilities because they couldn’t pay their fines under the
Affordable Care Act would engender widespread public approval.
Yet, at some point, a coherent rule for
approaching Free Exercise cases will have to be developed. The rule of the Smith
case seems to gut the Free Exercise constitutional guarantee of any meaning. A
right that only exists as long as the legislature doesn’t enact a law to the
contrary hardly qualifies as a right of constitutional dimension. Everything is
legal until the legislature says otherwise.
Any attempted distinction between
religious belief and religious practice, allowing for regulation of the latter
but not the former, is artificial, and a little sardonic. It would be hard to
find a religion that didn’t mandate some practices of its adherents, and
considered those practices an inherent feature of its beliefs.
What of the Sherbert test? At one
time, not so long ago, it was considered so fundamental that Congress felt the
need to enact it by legislation once it appeared that the Supreme Court was no
longer going to apply it. It really seemed to take everything into account,
protecting against infringement of religious practice, but at the same time
permitting laws that so infringed if the government could show a compelling
state interest and that the law was the least restrictive means of furthering
that interest. There was no danger that child sacrifice would be allowed.
Freedom of religion is in the Constitution, and it must mean that something is protected beyond the reach of the majority or the legislature. While it is true that the country is becoming increasingly secular, we should reflect on whether the Bill of Rights is becoming an inconvenience, and, if so, whether that portends good or bad for the country’s future.