If the title of this post suggests anything, then it should imply that I think this decision by the Court presents a mixed bag of positives and negatives for progressive supporters of health care reform in the U.S. and for defenders of access to women's reproductive health, in particular. The larger point of last week's decision (see U.S. Supreme Court, Burwell, Secretary of Health and Human Services, et al. v. Hobby Lobby Stores Inc., et al., (henceforth "Hobby Lobby") No. 13-354 (October 2013 Term), at: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf) was to evaluate provisions of the Patient Protection and Affordable Care Act of 2010 (ACA), mandating the inclusion of coverage for contraceptive methods for women in employer sponsored health care plans, against the requirements of the Religious Freedom Restoration Act of 1993 (RFRA), mandating that government violations of the religious beliefs of a person should be evaluated for constitutionality through a compelling governmental interest standard. This standard implies that the onus should fall on the government to prove the indispensible character of its actions in regard to a particular area of public policy to the Courts and that no other mechanisms less intrusive with respect to the protected constitutional rights of individuals could be used to achieve its ends. In this respect, by mandating that individual employers above a certain size threshold should be compelled to sponsor (though not necessarily pay for) health insurance policies for employees inclusive of a particular set of female reproductive care/contraceptive procedures that might, in some manner, be construed as abortive of a pregnancy, the ACA violated the religious freedom of individual employers opposed to abortion, forcing them to sponsor health plans that would potentially enable employees to abort a pregnancy.
The challenge to the ACA, raised independently and subsequently merged by the Supreme Court, by Hobby Lobby Stores Inc. and by Conestoga Wood Specialties Corporation concerned the sponsorship of health insurance policies including coverage for provision of the Plan-B "morning after" pill and intrauterine devices (IUDs). These employers are privately-held for-profit corporations, and the ruling issued by the Court specifically and exhaustively concerns the inclusion of these particular procedures as components in the "minimum essential coverage" under the ACA in health insurance policies sponsored by privately held for-profit corporations. In my understanding, the decision excludes all other procedures included within the ACA or subsequent Health and Human Services regulatory enactments as "minimum essential coverage" (e.g. blood transfusions) that might be construed to violate religious beliefs of an employer. It, likewise, excludes all other manifestations of business other than privately-held for-profit corporations (e.g. sole proprietary or partnerships, publicly-held corporations). Regarding business forms, however, I am assuming that the Courts would conclude that, following from existing jurisprudential standards on the operation of privately owned, non-corporate business entities, religious freedom claims from non-corporate business owners under the RFRA would be granted at least the same scrutiny that the Court accords to private corporate owners here. To these ends, Justice Alito's majority opinion cites Braunfeld v. Brown (366 U.S. 599 (1961)) in which the Court granted certiorari to a number of Jewish owned proprietary businesses challenging a Pennsylvania Sunday closure law, thereby accepting the limited circumstance that proprietary business owners can issue claims for violation of religious freedom related to the operation of their businesses. In this respect, we have to recognize the particular limitations involved in the Hobby Lobby decision. On the other hand, this does not mean that the precedent set here will not promote expansions in the enforcement of the RFRA to wide ranges of other public policy enactments.
1. By virtue of its particular reading of the RFRA, the Court is opening up federal, state, and local/municipal/county policies to a range of legal challenges in the enforcement of diverse statutory and regulatory enactments against business over First Amendment religious objections.
This is an argument that I made in an earlier post when the Hobby Lobby case was initially argued before the Supreme Court as Sebellius v. Hobby Lobby Stores Inc. I adamently hold to the position that, if the federal judiciary follows a compelling governmental interest test in adjudicating every conceivable case in which a governmental jurisdiction is challenged on religious grounds, untold numbers of federal statutes and/or regulations will come to be challenged. It may be that, in such circumstances, the federal judiciary will develop particular procedures in order to rigorously truncate the conditions under which particular claimants enjoy standing to make RFRA claims and to rigorously define the terms under which particular claimants can challenge statutory and regulatory enactments as broad in scope as ACA. On the other hand, the basic issue here concerns the potentiality to deviate from a basic rationality test on the constitutionality of governmental actions whenever a plaintiff can reference religious beliefs. What happens when a particular employer advances a religious claim to challenge the applicability of, say, minimum wage laws or prohibitions of child labor to their business? What about religious objections to the collection of federal income taxes to pay for military expenditures (conscientious objection to military policies through the tax system)? I do not think that any of these situations are far from the potential field of claims that could issue from RFRA jurisprudence. Notwithstanding the capacity of the federal judiciary to define the conditions under which claimants enjoy standing, RFRA appears, at least in my understanding, to open up the field to a substantial range of challenges against which the federal government is going to have to prove the absolute indispensability of its actions and its inability to select less intrusive means of meeting their ends before the federal judiciary. In this sense, claims issued in reference to moral/spiritual conscience could assume a level of prioritization in the U.S. beyond anything ever contemplated by the founders.
Before contemplating the possibilities for remediation of the potential for this elevated prioritization of religion against public policy, I want to evaluate the line of jurisprudence that has so far emerged from adjudication of claims under RFRA and claims concerning "free exercise" of religious freedom under the First Amendment predating RFRA, because these precedents illuminate another, more fundamental criticism that I have against existing standards in U.S. Constitutional law. The first relevant case in this history is Braunfeld v. Brown (366 U.S. 599 (1961)), cited above. As noted, the case involves a "Sunday-closure" law in Pennsylvania, objected to by Orthodox Jewish business owners. In a plurality decision, Chief Justice Warren held that the law was constitutionally permissible even if it did violate the free exercise of religion by the plaintiffs, because the law was passed to further a legitimate governmental power in the regulation of working conditions for the general population without reference to religious distinctions and there was no less burdensome ways for the state to pursue its desired objective. In this sense, the Court appears to straddle a line between an interpretation of the First Amendment free exercise clause that would necessitate a compelling governmental interest test and one that would simply allow the state to defend its actions based on the legitimacy of its power to legislate in a given area and the rational relationship of the means to their stated ends. The critical point for the Court appears to be the incidental character of the burden placed on religion in a law of general applicability, the same area addressed by Congress in the language of RFRA. On the other hand, the Court opens the door by referencing, in the language of the decision, the notion that the availability of less burdensome regulatory means might have entered into the decision.
Two years later, the Court pursued the opening to a compelling governmental interest test that it had promulgated in Braunfeld when it decided Sherbert v. Verner (374 U.S. 398 (1963)). This case involved a Seventh-Day Adventist working for a textile mill in South Carolina who was dismissed, after having been employed for some time, for refusing to work on Saturdays, in conformity with her religious faith, when the mill's schedule was extended to six days. The plaintiff subsequently sought and was denied unemployment compensation from the state of South Carolina. Appealing in federal court on the grounds that her First Amendment right to free exercise of religion was violated in the decision of the state of South Carolina that her religious objection to working on Saturdays was not a mitigating circumstance in her dismissal for purposes of granting unemployment compensation, the Warren Court, on granting certiorari, ruled on the plaintiff's behalf. Justice Brennan enunciated the standard that, if an individual claiming a governmental violation of free exercise of religion has a claim involving a sincere and substantiated religious belief and a cited governmental actions imposes a substantial burden on the individual's capacity to act inaccordance with said belief, then the government must prove that it is pursuing a compelling governmental interest and that no other means of furthering the exercise of the interest exist that would be less burdensome to the free exercise of the individual's religion. This standard was, further, elaborated in Yoder v. Wisconsin (406 U.S. 205 (1972)), which held that Amish families could, in conformity with their sincere and substantiated religious convictions, remove their children from compulsory public education. These two cases constituted settled law in regard to assessing the incidental burdens of governmental actions in laws of general applicability before the passage of RFRA.
Then, in 1990, the Court decided Employment Divison, Department of Human Resources of Oregon v. Smith (494 U.S. 872 (1990)), involving the denial of a claim for unemployment compensation by Native American workers dismissed from their employment for religious use of peyote. In the majority opinion, Justice Scalia held, specifically, that a compelling governmental interest test should not be used in evaluating incidental burdens to the free exercise of religion from laws of general applicability. As such, Oregon's prohibition on the use of peyote could be employed as a circumstance in the decision to deny a claim for unemployment compensation, notwithstanding the existence of Native American religious practices employing peyote. The majority recommended to the respondents that they seek relief from the Oregon state legislature in the form of an exemption from enforcement of state drug laws relative to Native American religious use of peyote. In this regard, I want to point out that, under this peculiar cicumstance, I can absolutely agree with the Court and with Justice Scalia(!) I would, further, assert that I object to the entire line of adjudication emanating from Sherbert insofar as it opens up legislatures and regulatory policy makers to diverse judicial obstacles in crafting and enforcing laws and regulations of general applicability based on incidental burdens to the free exercise of religion.
When Congress acted in 1993, pursuant to both its Article III, Section 2 Constitutional authority (with respect to federal appellate jurisdiction) and its authority under the Fourteenth Amendment, Section 5 (with respect to the states), to regulate the terms under which the federal judiciary should evaluate violations of the free exercise of religion under the First Amendment from laws and regulations of general applicability, it does so at the behest of preeminently liberal defenders of the religious freedom of minorities. It should, likewise, be noted that the line of jurisprudence running from Braunfeld until Smith, involves defense of the exercise of religious beliefs by faith traditions that might be characterized as marginal against a combined backdrop of the mainline Protestant traditions and Roman Catholicism, including Jehovah's Witnesses, Seventh-Day Adventists, Orthodox Jews, the Amish, Quakers, and Native American religions. In these respects, enforcement of First Amendment protections of free religious exercise has historically been an affair involving the enunciation of restrictions on governmental actions in defense of persecuted or otherwise marginalized religious minorities. Indeed, when the RFRA is introduced in March of 1993 as H.R. 1308, its author is liberal, Jewish New York Democratic then-Representative Charles Schumer! Similarly, it was signed into law by (not-so liberal but very partisan) Democratic President William J. Clinton.
As a defender of everything that the liberal tradition of the Enlightenment advances in regard to the free exercise of individual conscience against majoritarian bigotry, as a matter of principle, I cannot help but sympathize with the motivations embodied in RFRA and, likewise, understand how and why its drafters probably did not comprehend the particular pernicious ends to which it might contribute when leveled against legislative enactments intended to advance serious and comprehensive reform agendas, like the ACA. On the other hand, as a defender, first and foremost, of the democratic principle against the categorical extension of any rights, I disagree with any law whose intent is to undermine the authority of the lawgiver by investing jurists with undue discretion to invalidate legal enactments or to judicially enact loopholes through which the force of law gets diluted. In its very conception as a means of instructing the federal judiciary on how to adjudicate claims regarding laws of general applicability against the free exercise of religion under stricter judicial scrutiny, I disagree with RFRA.
Having said this, prior to the Hobby Lobby case, RFRA enjoys a relatively mixed record in extending religious liberty against specific individual claims of government infringement, and, again, I regard this as a part of the problem with the Hobby Lobby case. In Small v. Lehman (98 F.3rd 762 (1996)), the federal Third District Court of Appeals ruled that RFRA was the law of the land for purposes of adjudicating a dispute between a Salafist Sunni Muslim sect of prisoners in a state corrections facility of Pennsylvania and prison officials over provision of space and time for separate religious services conforming to the sect's particular worship requirements. The court remanded the case to the district level with the instruction that the district court was to evaluate whether the defendants could substantiate a compelling governmental interest for denying the free exercise of religion by the plaintiffs. A year later, the Supreme Court heard and decided City of Boerne, TX v. Flores (521 U.S. 507 (1997)) in which the Court held that Congress exceeded its power under Section 5 of the Fourteenth Amendment to establish substantive rights for individuals under the Fourteenth Amendment, applicable against actions by state and local governments. In so many word, Justice Kennedy, in the Court's majority opinion, asserted that the federal judiciary was the sole entity capable of selectively incorporating and defining individual rights and protections from the Bill of Rights against state and local governments through the Fourteenth Amendment. Any effort by Congress to define the terms through which the individual protections of the Bill of Rights would be enforced against state and local governments would, thus, infringe on the separation of powers between the judicial and legislative branches of the federal government. Henceforth, RFRA would be applicable only against actions by the federal government.
In 1999, a devout Quaker anti-war federal income tax resister, Priscilla Adams, appealed a judgment in U.S. Tax Court (Adams v. Commissioner of Internal Revenue, 110 T.C. 137 (1998)) to the Third Circuit Court of Appeals (Adams v. Commissioner of Internal Revenue, 170 F.3rd 173 (1999)), arguing that RFRA constitutes terms under which the federal government should be compelled to prove that a means less intrusive to the free exercise of religion cannot be developed to collect revenues for strictly non-military purposes. The court identifies a long history of case law involving resistance to federal tax collection on grounds that the tax system violates the free exercise of religion. At each and every point in this history, the conclusion repeatedly follows that the collection of federal tax system "uniformly applicable to all, except as Congress provides explicitly otherwise," (cited: United States v. Lee, 455 U.S. 252 (1982), at 261) constitutes a compelling governmental interest for which there is no other means less intrusive to the free exercise of religion. Religious practices can, thus, never trump the collection of federal taxes.
In Navajo Nation v. U.S. Forest Service (535 F.3rd 1058 (9th Cir. 2008)), the federal Ninth Circuit Court of Appeals ruled against an RFRA free exercise claim issued by several Native American tribes that the use of recycled sewer water to produce artificial snow at a ski resort on federal lands in the San Francisco Mountains of northern Arizona would desecrate lands that the tribes considered sacred. The court apparently argued that, by permitting the use of recycled sewer water, the federal government would not be imposing any substantial burden on religious practices by the plaintiffs, because the contemplated use of recycled water would only impact the subjective spiritual experience of the plaintiffs(!) In this sense, the court qualified the conditions under which claims could be made against actions by the federal government under RFRA. That is to say, a claim can be issued for governmental actions that impose a substantial (material) burden on religious practices, however the terms of such a burden, thus, might be substantiated before the federal judiciary. In this respect, it might be worthwhile to inquire where the dividing line between subjective spiritual experience and the material necessities of free religious practice exists, because, at least to my satisfaction, the answer here appears entirely murky!
Summarizing the problems that I have with this line of jurisprudence, before and after the passage of RFRA, it is likely to be true that the federal judiciary will create procedures for sorting out when a claim under RFRA against particular federal governmental enactments or policies of general applicability requires an evaluation to determine whether the government must prove that it is pursuing a compelling governmental interest by the least intrusive means. It may, likewise, be the case that any hyperbolic parade of horribles characterizing the negative effects of the Hobby Lobby decision, particularly with respect to the extension of free exercise privileges to privately held corporations (a particular issue in Justice Ginsberg's dissent), is liable to overstate the impact of the decision, again, in view of the capacity of the federal judiciary to compartmentalize particular challenges to federal legislation. On the other hand, I have a problem with the very fact that the federal judiciary has been invested with this capacity to sort out claims in reference to RFRA and/or the Free Exercise clause.
Emphatically, we are investing unelected jurists with the capacity to determine when a religious practice is sincere and substantiated, when it involves something more profound and material in nature than a mere subjectively diminished spiritual experience, when a particular, Congressionally determined policy priority constitutes a compelling governmental interest, and when the exercise of this interest is or is not advanced by the least intrusive means possible. It might stand to reason that someone, like myself, who invests undiminished priority in the democratic process would find any uses of a compelling governmental interest test by jurists objectionable. I could probably take some amount of comfort that, in view of the Boerne decision, no RFRA claims will ever be made again against state or local governmental enactments of general applicability. Conversely, I think that I would be apt to sympathize at least as much with anti-war tax resisters like Priscilla Adams, in their sincere and substantiated religious convictions, as I would with the Hahns (of Conestoga Wood Specialities) and the Greens (of Hobby Lobby), in their sincere and substantiated religious convictions. What, in this cicumstance, makes the collection of the federal income tax more of compelling governmental interest and less amenable to alternative methodologies for reducing its incidental burden on the free exercise of religious convictions than the requirement that employers of a certain scale must provide health insurance with particular coverage minimums? In my view, unelected federal jurists should not be entitled to make such a determination. This is a question to be entertained by Congress in its capacity to act in accordance with its enumerated powers, inclusive of determinations of what might be "necessary and proper" to exercise each.
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