1993 religious freedom act is at heart of contraception case

The Supreme Court is considering whether to hear an appeal of a ruling that employers cannot be made to provide contraception coverage under the new healthcare law if they have religious objections.
(Karen Bleier / Getty Images)

WASHINGTON — When the Supreme Court confronted the case of Native Americans who were fired for smoking an illegal drug during a religious ceremony, Justice Antonin Scalia called a halt to granting religious exemptions under the Constitution’s protection for the “free exercise” of religion. It “would be courting anarchy” to permit “religious objectors” to ignore the law, he said.

But Democrats in Congress rose up to overturn his decision and to bolster religious freedom.

Backed by a broad coalition, including the American Civil Liberties Union and the Christian Legal Society, the Religious Freedom Restoration Act became law 20 years ago this month. It declared that the government may not “substantially burden a person’s exercise of religion” unless it had a “compelling” reason to do so.


Now, that little-known law is at the center of a major “religious liberty” challenge to President Obama’s health insurance overhaul and its requirement that employers pay for full contraceptive coverage for their female employees.

Christian employers have gone to court, citing the 1993 law and saying they have a sincere religious objection to providing “abortion causing” drugs such as the “morning after” pill. And they have won before the U.S. appeals courts in Denver and Chicago.

The appeals court judges relied on the Supreme Court’s much-disputed Citizens United decision that said corporations have the same right as people to make political contributions; they concluded that “for-profit corporations” can be considered “persons” with religious beliefs.

“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” the 10th Circuit said in ruling for Hobby Lobby Inc., a nationwide chain of more than 500 crafts stores with 13,000 full-time employees. The company is owned by the Green family of Oklahoma City.

Obama administration lawyers appealed the Hobby Lobby case to the Supreme Court, calling the decision incorrect and unwise. The justices are likely to hear the case and may announce their decision to do so as soon as Tuesday.

“We are at a scary moment in our history if they say there is a constitutional right to shape benefits based on the religious beliefs of the owners,” said Marci Hamilton, a Benjamin N. Cardozo School of Law professor and a critic of the religious freedom law. “Why isn’t this discrimination against women based on gender and religion?”

If so, it will put a new spotlight on an old and recurring question: When and under what circumstances can people cite their religious beliefs to avoid complying with the law? And thanks to the 1993 law, it will give the court’s conservatives, including Scalia, a chance to deal a blow to Obama’s healthcare law.

“It is a curious twist,” said J. Brent Walker, executive director of the Baptist Joint Committee, which led the effort to pass the law. “I must say frankly that back then, nobody was thinking of whether a for-profit corporation could object to paying for insurance benefits.”

But a lawyer for Hobby Lobby stores says the law made clear that religious beliefs are due special protection. “We believe Americans don’t give up their religious freedom rights when they go into business,” said Lori Windham, an attorney for the Becket Fund for Religious Liberty.

The 1st Amendment says, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The Supreme Court has long said this means Americans are entirely free to hold religious beliefs and worship as they choose. But they are not necessarily free to violate what Scalia called “neutral and generally applicable laws” because of a conflict with their religious faith.

In its first major “free exercise” ruling, the high court in 1879 upheld a polygamy charge against a Mormon leader in Utah and said that while the laws “cannot interfere with mere religious belief and opinion, they may with practices.” But in the mid-20th century, a more liberal Supreme Court ruled for Jehovah’s Witnesses, the Amish and other religious minorities who sought religious exemptions, including a Seventh-day Adventist who was fired for refusing to work on Saturday.

But Justice Scalia rejected this approach in the 1990 case of the Native Americans who had smoked peyote.

“An individual’s religious beliefs [cannot] excuse him from compliance with an otherwise valid law,” Scalia wrote in Oregon vs. Smith. Sen. Edward M. Kennedy and then-Sen. Joe Biden were among the Democrats who led the drive to overturn to Scalia’s opinion through legislation. In 1993, their bill passed by a nearly unanimous vote.

The Supreme Court struck back four years later and ruled that Congress could not set the religious freedom standards for states and municipalities. Only the federal government would be bound by the Religious Freedom Restoration Act.

The pending case, Sebelius vs. Hobby Lobby Stores, presents three major questions:

Is a family-owned, for-profit corporation a “person” under the religious freedom law?

Does a requirement to pay for certain insurance benefits “substantially burden” the owner’s free exercise of religion?

Does the government have a “compelling” interest in ensuring that female employees may obtain contraceptives?

If the justices vote to take up the case, it will be heard in the spring and decided by June.