July 10, 2014

On June 30, the US Supreme Court, in a 5-4 decision, ruled in favor of Hobby Lobby and Conestoga Woods, two family-owned companies that had asked, because of their Christian pro-life convictions, not to have to include four contraceptive drugs and devices, which they consider to be abortifacients, in their employee health plans. The contraceptive mandate generally requires health plans to cover "all FDA-approved" contraceptive drugs, devices, and education. The administration wrote into the regulations an exemption for church and church auxiliaries (church-controlled subordinate organizations) and, after great protest, an "accommodation" for religious nonprofit organizations such as colleges and charities (an accommodation rejected as inadequate by many faith-based nonprofits). But for-profit companies, the administration said, have no religious rights, and thus are fully subject to the contraceptives mandate.

 

The Court majority disagreed. The Religious Freedom Restoration Act (RFRA) is applicable to organizations as well as individuals, to corporations (most nonprofits and churches are "corporations") as well as other organizations, to for-profit organizations as well as nonprofits. (Similarly, the constitutional guarantee of free speech applies not only to reporters but also to media companies-see, e.g., NY Times v. US, 1971, about publication of the Pentagon Papers.) Justice Alito, in his majority opinion, pointed out: "A corporation is simply a form of organization used by human beings to achieve desired ends." And so, "protecting the free-exercise rights of corporations like Hobby Lobby . . . protects the religious liberty of the humans who own and control those companies."

 

RFRA does not immunize any person or organization from the law, however. The claimed burden on the free exercise of religion has to be substantial even to be weighed against the government's requirements. And the government's requirements can still prevail, imposing such a burden, if the government's interest is "compelling" and it has no way to achieve its aim that will restrict religion less substantially.

 

In the case of these two closely-held companies, challenging the requirement to include contraceptives the owners are sure act to end nascent life, the Court majority said that the burden was in fact substantial (consider the multi-million dollar fines) and that--assuming that the government's aim in assuring to women cost-free access to all contraceptives is compelling--the government had not chosen the least restrictive means to ensure that access. A less restrictive means than compelling the owners to include the contraceptives in their plans has been designed by the federal government itself: the accommodation offered to religious nonprofits, whereby the insurance company or the third-party administrator of the insurance is required to pay for the contraceptives an organization excludes from its plan for reasons of conscience.

 

Thus, according to the Court, Hobby Lobby, Conestoga Woods, and similar companies with a similar objection to the contraceptives mandate win relief. The government must let them exclude some or all contraceptives, if they have a weighty religious objection to them-and devise a different way to ensure access to those contraceptives by these companies' women employees.

 

The decision protects the ability of business owners to use ethical (religious, humanitarian, social-justice) values in running their companies-an outcome we should all applaud. It does not permit companies to prevent their employees from accessing legal contraceptives, nor permit companies to make up religious claims so that they can save money at the expense of their employees, or arbitrarily deny employee rights. It does not authorize companies to fire gay employees and did not determine whether big companies traded on the stock exchanges do or do not have the same religious rights as Hobby Lobby.

 

The decision does instruct the government to devise a religiously less-restrictive means of ensuring access to cost-free contraceptives to women employed by companies like Hobby Lobby and Conestoga Woods.

 

Effort to Limit RFRA.  Rather than devise such a means, an effort is underway in Congress simply to strip RFRA protection from Hobby Lobby and similar companies. The Senate bill , initiated by Senator Patty Murray (D-WA), and a companion House bill championed by Rep. Louise Slaughter (D-N.Y.) and others, would prevent companies from having recourse to RFRA if they have religious objections to the contraceptives mandate. Depending on how the wording is interpreted, it may strip RFRA protections from companies with respect to other federal requirements.

 

In any case, adoption of the bill, which seems very unlikely, would establish a very negative precedent as the first successful effort to exclude some acts of religious exercise from the protection of RFRA, which was adopted to great acclaim in 1993 exactly to provide strong protections for such exercise. Earlier congressional efforts to carve away RFRA protections have failed; over the past few years Republicans as well as Democrats have proposed restrictions on RFRA (e.g., to make it easier for the Pentagon to enforce its dress code, to ease the border-patrol duties of the Department of Homeland Security, to make it easier to curtail deceptive advertising about funerals and burials, and to undermine religious hiring by religious organizations taking part in some federal drug-treatment programs). All of these efforts have been withdrawn or have died for lack of action. Congress should quickly turn down this latest attempt to undermine the Religious Freedom Restoration Act-and devise a different means to achieve its aim.

Within just a few days of its Hobby Lobby ruling, the US Supreme Court gave temporary protection against the contraceptives mandate to Wheaton College, an evangelical institution. Wheaton College is eligible for the "accommodation"--different than the exemption from the mandate for churches and church auxiliaries.  

 

In the accommodation, a religious nonprofit with a religious objection to some or all of the mandated contraceptive drugs and devices can fill out a form for its insurance company or third-party administrator (TPA) of health benefits, certifying that it is a religious nonprofit with such an objection, and specifying the contraceptives that must be excluded. The insurance company or TPA must exclude those contraceptives from the objecting religious employer's health plan-and then instruct that employer's women employees that it will pay for their uses of any of the excluded contraceptives.

 

As Wheaton and other protesting religious nonprofits have told the courts, this is not a meaningful protection of their religious freedom: the form they must sign is a legal document that triggers, requires, exactly the contraceptive coverage they have objected to.

 

In its brief July 3 ruling, the Supreme Court agreed to release Wheaton from the accommodation's requirement while its case against the mandate works its way through the courts. As it did earlier when the Little Sisters of the Poor asked for similar relief, the Supreme Court said that Wheaton College may simply submit a form attesting to its religious objection to the federal Health and Human Services Department. It is up to HHS to instruct the insurer or TPA to supply the contraceptives.

 

Eventually, perhaps for its next term, starting in the Fall, one or more of the nonprofit religious organizations cases will be accepted by the US Supreme Court for a definitive ruling. In the meantime, as the Becket Fund's indispensable HHS Mandate Information Central web page reports, of the 51 nonprofit cases, the courts have granted provisional victories 30 times vs. 3 temporary rejections; of the 49 for-profit cases, there are currently 40 provisional victories vs. 6 temporary defeats.

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Several weeks ago, the White House announced that the President had directed his staff to draft for his signature an Executive Order banning job discrimination on the bases of sexual orientation and gender identity by federal contractors. Federal contracts are used mainly for purchasing fighter jets, janitorial services, information technology, etc., from secular companies, but some social services (for federal prisoners, for overseas development and relief) are also contracted for (as opposed to being paid for by grants), as is research, consulting, and technical assistance. Some faith-based organizations provide such services by contract, and faith-based organizations, as permitted by law, often consider religion when assembling their staff and maintain an employee conduct standard based on their respective religion's teachings about sexuality and relationships.

 

So that faith-based organizations will not suddenly become ineligible for federal contracts when the federal government acts to stop invidious discrimination by federal contractors, many leaders of faith-based organizations, church-state experts, and religious leaders have asked the President to include robust protections for religious organizations in his pending Executive Order.

 

IRFA organized a letter to the President, urging religious freedom language like that adopted by the Senate last November when it passed the Employment Nondiscrimination Act (ENDA), which would ban job discrimination on the bases of sexual orientation and gender identity by all but the smallest employers. (The House of Representatives has declined to take up this bill.)

 

IRFA's letter went to the President on June 25, with additional signatures sent a day or two later, for a total of some 160 signatures. The letter deliberately does not take a position on Administration efforts to combat LGBT discrimination; the focus is on the religious freedom protections that must accompany any such action. 

A second letter to the President, also asking for religious freedom protections, was sent by a different (but overlapping) group of leaders on July 1. This letter does not stress the specific religious freedom protections which should be included but rather the great good accomplished in the world by faith-based service organizations, and it speaks positively about the Administration's efforts to combat wrongful discrimination. 

These letters have been caught up in the Hobby Lobby backlash ("religion being used to justify discrimination") but, of course, were written separately from and before the Hobby Lobby decision. There is only marginal overlap between that decision and the requests of the two letters.  Among other things, the Hobby Lobby backlash has now led to a number of important LGBT rights groups (but not, for the moment, the Human Rights Campaign) withdrawing their support for ENDA because of its religious exemption. A letter from other religious leaders specifically rejecting a religious exemption in the pending LGBT Executive Order has also been sent to the President.

A few points:

1. The June 25 letter asking for strong religious freedom protections was circulating for signatures long before the Hobby Lobby decision.  It follows a similar letter signed by leaders of religious organizations and sent to the President in January.

2. Faith-based organizations are not intent on discrimination but ask only to be able to continue to maintain in their internal practices their religion-based convictions about conduct--conduct standards that are applied to all employees and students, whatever their sexual orientation.

3. Our society is morally and religiously diverse, and this diversity is naturally reflected in the many valuable and valued organizations of civil society.

4. Convictions about sexual conduct, sexual relationships, marriage, families, and divorce are close to the center of many religious traditions because they are so central to human life and flourishing.  Religious communities differ on these things, as do different secular groups.  It is not an appropriate use of government power to impose on religious communities and organizations a requirement that they ignore their convictions and practices in these critical matters.  In asking for an exemption, they are not requesting that the government require other organizations to follow the same internal policies that the religious organizations do. 

5. It will be harmful to the common good if the government's rules attached to contracts and other benefits require the exclusion of many of its current partners who, whatever their convictions about their own internal practices, serve all eligible persons--and serve them with excellence exactly because of the organizations' religious convictions.

6.  Religious freedom protections, exactly the same as protections for free speech and for conscientious objection to military service, are necessary precisely when there are deep differences in society about very important values.  Tolerance requires mutual respect for differing values and practices--that's the opposite of using the government to force others to accept and endorse one group's preferred values.

LGBT rights and religious freedom are being pitted against each other.  Speaking up for the rights of religious organizations and individuals is risky at this moment--but this is the moment when speaking up is vital:  exactly when our society and government and courts struggle with how to do justice with competing and even conflicting perspectives and values at this moment in our lives together. And this is a moment when our society retains considerable respect for the good accomplished in society by faith-based organizations

The Religious Freedom Restoration Act (RFRA) was at the center of the recent Supreme Court Hobby Lobby decision. And at the center of the current congressional attempt to require Hobby Lobby and similar companies to cover all contraceptives in their employee health plans, despite religious objections and despite the Supreme Court's ruling, is a plan to restrict the scope, the jurisdiction, of RFRA.

 

So what is RFRA, why was it adopted two decades ago and signed into law to great acclaim by President Bill Clinton, and what does it accomplish?

 

Here's a selection of resources:

 

Kim Colby, "A Perpetual Haven: Why the Religious Freedom Restoration Act Matters," Public Discourse, June 30, 2014.  

 

"Faith Leaders to Congress:  Don't Change Vital Religious Freedom Law (RFRA)," June 30, 2014. 

 

Baptist Joint Committee, "The Religious Freedom Restoration Act: 20 years of protecting our first freedom." 

 

Becket Fund for Religious Liberty, "Faces of Free Exercise" (video). 

 

Newseum, November 7, 2013, "Restored or Endangered? The State of Free Exercise of Religion in America." (videos)  

 

Kim Colby, "The State of Religious Liberty in the United States," June 10, 2014 testimony before the Judiciary Committee of the US House of Representatives, Subcommittee on the Constitution and Civil Justice.

Seeking a consensus to overhaul federal job training programs, Congress will leave intact a religious hiring ban as it reauthorizes the program--even though faith-based organizations often provide valuable and unique job training programs. But the Religious Freedom Restoration Act makes it possible for religious organizations that consider religion in hiring to participate in federal programs that ban religious hiring, under some circumstances.  

 

When the House of Representatives considered the reauthorization bill, the Workforce Innovation and Opportunity Act, on July 9, 2014, Chairman John Kline (R-MN) of the Education and the Workforce Committee placed into the Congressional Record this statement about the matter:

 

"Madam Speaker, the Workforce Innovation and Opportunity Act maintains without change from the Workforce Investment Act of 1998 a nondiscrimination requirement. The requirement not only prohibits participating organizations from discriminating against those who need job training assistance, but it also requires faith-based organizations to stop considering religion when hiring staff as the price of partnering with the federal government to help these job seekers.

 

"The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the government from substantially burdening religious exercise. RFRA applies to every federal law, and it protects the right of religious hiring, notwithstanding the restrictive language we just affirmed. This specific use of RFRA is explained in an extensive Office of Legal Counsel (OLC) memorandum dated June 29, 2007.

 

"This use of RFRA to protect religious hiring by religious organizations even when a federal grant program prohibits it was recently reaffirmed by the Office on Violence Against Women (OVAW) of the Department of Justice. In reauthorizing the Violence Against Women Act (VAWA) last year, Congress inserted into the law a broad nondiscrimination requirement such as the one we maintain in today's workforce bill. On April 9, 2014, OVAW issued ''Frequently Asked Questions'' about [the VAWA] non- discrimination requirement. In Q and A 6, OVAW explained the OLC memorandum on RFRA's applicability and set out the way a religious organization that engaged in religious hiring may take part in VAWA-funded services despite the addition of the nondiscrimination requirement.

 

"Q and A 6 further includes a link to a long- standing Department of Justice form, the Certificate of Exemption for Hiring Practices on the Basis of Religion, used by religious organizations to appeal under RFRA to participate in DOJ programs.

 

"The religious hiring freedom is a vital freedom for religious organizations. Therefore I am pleased to stress this important protection found in the Religious Freedom Restoration Act."

 

Congressional Record, July 9, 2014, H5971.

Point:  Peter Conn, "The Great Accreditation Farce," Chronicle of Higher Education Commentary, June 30, 2014.

"By awarding accreditation to religious colleges, the process confers legitimacy on institutions that systematically undermine the most fundamental purposes of higher education.

"Skeptical and unfettered inquiry is the hallmark of American teaching and research. However, such inquiry cannot flourish--in many cases, cannot even survive--inside institutions that erect religious tests for truth. The contradiction is obvious."

Counterpoint:  Alan Jacobs, "An academic farce," TextPatterns, blog at The New Atlantis, July 3, 2014.

"Conn is appalled - appalled - that religious colleges can receive accreditation. Why does this appall him? Well, because they have communal statements of faith, and this proves that in them 'the primacy of reason has been abandoned.' The idea that religious faith and reason are incompatible can only be put forth by someone utterly ignorant of the centuries of philosophical debate on this subject, which continues to this day . . .

"Conn is, if possible, even farther off-base when he writes of 'the manifest disconnect between the bedrock principle of academic freedom and the governing regulations that corrupt academic freedom at Wheaton.' I taught at Wheaton for twenty-nine years, and when people asked me why I stayed there for so long my answer was always the same: I was there for the academic freedom. My interests were in the intersection of theology, religious practice, and literature - a very rich field, but one that in most secular universities I would have been strongly discouraged from pursuing except in a corrosively skeptical way. Certainly in such an environment I would never have dared to write a book on the theology of reading - and yet what I learned in writing that book has been foundational for the rest of my career."

*Kristen Powers, "Religious exemption myths," USA Today, July 9, 2014:

 

"Fourteen religious leaders set off a firestorm last week when they sent President Obama a letter requesting a religious exemption in his planned executive order banning discrimination by government contractors against employees on the basis of sexual orientation or gender identity. . . . 

 

"Without an exemption in Obama's executive order, we could see many religious organizations that provide social services to the most needy losing government contracts because they act on the dictates of their faith. Century-old Catholic Charities, which serves more than 10 million Americans a year, could lose critical government funding to help people in desperate need. This disregard for the poor who are served by religious organizations is astounding."

. . . 

 

Lyman Johnson-"Hobby Lobby, a Landmark Corporate Law Decision," Business Law Prof Blog, July 2, 2014:

 

"To hold that close corporations were 'free' from the contraceptive mandate of the Affordable Care Act, because of RFRA, the Court thus had to determine that, under state corporate law, such companies are likewise 'free' from some imagined state legal mandate to maximize profits.  Readily concluding that corporations clearly do have the liberty not to maximize profits, the Court concluded that, as a legal matter, they were necessarily 'free' to exercise religion.  But critically, that means business corporations, being free in this respect under state corporate law, can pursue a whole host of objectives other than making money.  Those objectives include various humanitarian, social, and environmental objectives of the sort progressives have long championed.  As one who for decades has favored a vision of corporations (and corporate law) as being utterly conducive to serving broad social purposes - as freely determined, of course, by the appropriate corporate decisionmakers - and as one who supported Hobby Lobby, I found it odd to see these companies opposed by so many corporate progressives.  When one advocates for freedom on the corporate purpose front, just as is the case on the free speech front, one fights for those with whom one may disagree.  Remember here Voltaire and his 'I do not agree with what you have to say, but I will defend to the death your right to say it.'  But take comfort:  although progressives lost the Hobby Lobby battle, they gained (accidently) an ironic victory on the all-important corporate purpose war."

 

. . . 

 

Prof. Mark Rienzi: "A good day for Hobby Lobby - and for the Little Sisters of the Poor and Mr. Muhammad, too," The Volokh Conspiracy, June 30, 2014:

 

"The Hobby Lobby decision will also help plaintiffs in non-Mandate cases. For example, next fall the Court will hear Holt v. Hobbs, a case involving a Muslim prisoner in Arkansas who would like to grow a half-inch beard in compliance with his faith. The Becket Fund represents the plaintiff, Mr. Muhammad. Hobby Lobby will help Mr. Muhammad by making clear that governments opposing religious plaintiffs have a duty to explain why accommodations given to one person, for secular reasons, cannot be extended to religious believers as well. Indeed, the opinion for the Court, at fn. 41 quotes the Government's brief in support of Mr. Muhammad in Holt v. Hobbs: 'the Government itself apparently believes that when it "provides an exception to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests."' Thus Hobby Lobby bodes well for Mr. Muhammad too."

 

. . . 

 

Stanley Carlson-Thies, "US Supreme Court rules business isn't a religion-free zone," The Cardus Daily, July 1, 2014:

 

"This decision gives no carte blanche to employers to manufacture religious pretexts to save money on employee expenses, to prevent employees from obtaining products or services the owners object to, or to exclude the government from protecting employee rights.

 

"Rather, the decision importantly vindicates business as a realm where employers can made decisions based on religion, charitable impulses, humanitarianism, social justice, and other motivations, and not just maximization of profit. And it vindicates religious freedom as a check on even the best-motivated government regulatory actions. In our advanced societies so centred on commerce and government regulation, it is a signal achievement for a highest court to come to the aid of religion and civil society."

 

. . . 

 

Stanley Carlson-Thies, "Hobby Lobby, Benefit Corporations, and Religious Nonprofits," Cornerstone (blog of the Religious Freedom Project at Georgetown University's Berkley Center), July 2, 2014:

 

"The free exercise of religion extends beyond worship and religious belief to organizational decision-making in the world outside of churches. Furthermore, the set of private community-serving entities cannot be neatly bifurcated into mission-oriented religious nonprofits and mission-devoid secular businesses. Those are two of the significant conclusions we can draw from Monday's Supreme Court decisions in the Hobby Lobby and Conestoga Woods cases."

Institutional Religious Freedom Alliance | stanley@irfalliance.org | http://www.irfalliance.org
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