When Oxen Are Gored

 

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.