On March 25, the Supreme Court will hear oral arguments in Sebelius v. Hobby Lobby Stores, a case challenging the Affordable Care Act’s (ACA’s) requirement that most employers provide contraceptive coverage in their employee health insurance plans.
The uproar over the contraception mandate has been steady and strong – dozens of lawsuits have been filed in the federal courts by employers who object to the mandate. Each of the employers bringing these challenges is a closely held corporation that is family owned or controlled. These corporations generally offer secular goods and services, and the courts and the owners of these companies generally have conceded that they are not religious organizations, but instead are commercial entities that are operated in accordance with the owners’ religious principles.
At the outset, the Hobby Lobby lawsuit appears to concern a clear First Amendment principle, freedom of religion. However, despite its rather simple appearance, Hobby Lobby is far from a simple case. Neither Hobby Lobby nor the Obama administration appealed to the First Amendment in their briefs to the court. Instead, the focus is on the Religious Freedom Restoration Act (RFRA), which President Bill Clinton signed into law in 1993.
Much of the commentary regarding the case, therefore, has considered whether Hobby Lobby itself is eligible for protection under the RFRA and Free Exercise jurisprudence as the threshold question. Specifically, what rights do secular businesses that operate for profit have to pursue legal claims to protect their religious exercise? In other words, can for-profit corporations have rights of religious conscience? Indeed, this is a difficult and novel legal question.
But such focus, while interesting, is misguided.
Before even turning to the merits of the case (whether Hobby Lobby is covered by the RFRA), the Supreme Court should decide the issue of RFRA’s constitutionality. Intense passions about religious freedom have obscured this central issue. But the Court should cut through the weeds and restore sanity to the religious liberty regime in the United States, and it should hold that RFRA is unconstitutional as a clear and direct violation of the separation of powers.
The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Historically, the Supreme Court required that the government show a compelling interest for government actions that interfere with a person’s exercise of religious beliefs (see e.g., Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972)). However, the Court reinterpreted that standard in 1990, issuing a decision in Employment Div. Dept. of Human Resources of Oregon v. Smith (1990).
In Smith, the Court held that under the Free Exercise Clause, “the approach in accord with the vast majority of our precedents, is to hold the [strict scrutiny] test inapplicable to [free exercise] cases” involving neutral laws of general applicability. The Court explained:
The government’s ability to enforce generally applicable prohibitions of socially harmful conduct . . . cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is compelling – permitting him, by virtue of his beliefs, to become a law unto himself – contradicts both constitutional tradition and common sense.
Accordingly, the Court explained that the Free Exercise Clause never “relieve[s] an individual of the obligation to comply with a valid and neutral law of general applicability.”
The Smith decision was widely perceived as a threat to religious liberty. In the wake of this uproar, and in direct response to Smith, Congress enacted the RFRA. The very title of the law (the Religious Freedom Restoration Act) indicates that it is a “restoration” of something that previously existed. And to this end, the law itself unabashedly proclaims that the statute’s purpose was to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972), and to guarantee its application in all cases where free exercise of religion is substantially burdened.”
On its face, therefore, RFRA is not an ordinary statute. RFRA replicates, nearly word for word, the burdens on the parties in free exercise cases. The law plagiarizes the Supreme Courts doctrinal terminology and approach. The first clause of the statute reads: “The Congress finds that the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution.” Congress then proceeds to define the level of protection to be accorded free exercise of religion:
In general Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability [unless] . . . it is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.
RFRA, simply stated, is Congress’s attempt to concoct its own free exercise constitutional doctrine by “restoring” its two favorite free exercise decisions. And in passing RFRA, Congress aggrandized its own power and usurped the Supreme Court’s power to interpret the Constitution.
That cuts against the very principles of our democracy. In The Federalist No. 78, Alexander Hamilton wrote:
If it be said that the legislative body are themselves the constitutional judges of their own poets and that the construction they put upon them is conclusive upon the other departments it may be answered that this cannot be the natural presumption . . . . It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any peculiar act proceeding from the legislative body.
Even the Anti-Federalists, though opposed to the concept of judicial review, recognized that the Constitution provided for its exercise by the courts. And in Marbury v. Madison, the Supreme Court charged itself with the supreme authority to “say what the law is.”
With RFRA, Congress acted out of manifest disrespect for the Supreme Court as an institution.
The Supreme Court has already struck down RFRA as it applied to actions by state governments. In City of Boerne v. Flores (1997), the Court struck down RFRA as a violation of Congress’s authority to pass laws regulating the states under the Fourteenth Amendment. But while the decision was not based on separation-of-powers issues, the Court issued a clear warning of the consequences of abandoning the approach dictated by Marbury. In measured tones, the Court reasoned:
Our national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches. When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed.
Turning to the RFRA, however, the Court stated in no uncertain terms:
RFRA was designed to control cases and controversies, such as the one before us; but the provisions of the federal statutes here invoked are beyond congressional authority, it is this Court’s precedent, not RFRA, which must control.
There is nothing subtle about RFRA’s encroachment on the Supreme Court’s interpretive autonomy. Through RFRA, Congress has expropriated the Supreme Court’s constitutional duty to interpret the First Amendment. RFRA is unconstitutional under any scenario as a direct violation of the separation of powers, regardless of whether it is applied to state or federal law.
The Supreme Court should invalidate RFRA. And in Sebelius v. Hobby Lobby Stores, the Court is presented with the opportunity to do just that. By striking down RFRA as unconstitutional, the Court can restore the vital principles necessary to maintain separation of powers and the federal balance.