The country rounded a new and dangerous corner with the recent Supreme Court ruling in Burwell v. Hobby Lobby. By holding that the Religious Freedom Restoration Act (RFRA) excuses for-profit employers from providing contraceptive coverage under the Affordable Care Act, the court has given businesses a presumptive right to disregard laws that conflict with their religious beliefs.
For 125 years the court has resisted the notion that religious individuals are entitled to disobey laws that everyone else is obligated to follow. The court has taken a “hands off” approach to churches and other religious congregations, and sometimes used broad language in its effort to protect minority faiths; but in the end, the court has emphatically affirmed what good sense, constitutional tradition and justice among a religiously diverse people, unite in demanding: Religious conviction does not entitle believers to disobey democratically enacted laws that bind the rest of society.
RFRA overturns this understanding, giving “any person” a right of exemption from any law that “substantially burdens” that person’s exercise of religion, unless the government can prove that the law “is in furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling interest.” The court has now employed RFRA to give for-profit businesses such as Hobby Lobby the right to deny insurance to employees for medical prescriptions and procedures that offend the owners’ religious convictions. For the first time in U.S. history, the Supreme Court has endorsed the principle that for-profit businesses may be excused from obeying laws and regulations to which they or their owners object on religious grounds.
The majority opinion principally relies on an existing accommodation created for nonprofit religious employers such as religious hospitals and universities that relieves them of the obligation to cover contraceptives to which they object and imposes it instead on their health-plan insurer or administrator. The court determined that this narrow accommodation of indisputably religious organizations can simply be extended to for-profit employers such as Hobby Lobby, with little cost to the government and no cost to anyone else. It gave no serious consideration to cost or feasibility, let alone to the many current lawsuits contending that this accommodation also violates RFRA.
Although the court gestures at limiting its decision to the facts at hand, its opinion will reach far beyond Hobby Lobby’s opposition to a few contraceptives. Religious business owners who object to all contraception can now successfully seek relief under RFRA. Likely to follow are religious objections to covering other prescriptions, treatments and procedures such as mandatory immunizations. Some state courts will undoubtedly be influenced by the court’s expansive interpretation of federal RFRA in applying the “little RFRAs” that many states have adopted. In fact, lawsuits have already been brought by closely held for-profit businesses claiming that their religious beliefs require discrimination against employees or customers on grounds of sexual orientation in violation of state law. Nothing in the majority opinion explains why these claims are materially different from the RFRA exemption it has granted to Hobby Lobby, and the lower courts will soon be bogged down in the impossible task of weighing when the religious owners of closely held businesses must be excused from obeying laws that bind everyone else in the workplace.
The Supreme Court did not “restore” religious liberty by granting Hobby Lobby an RFRA exception, but dealt it an unprecedented blow in a 5-4 decision with uncertain ramifications. After Hobby Lobby, believers and unbelievers alike must bear the workplace costs of someone else’s religious convictions. Protecting the liberty of all Americans requires the limitation or repudiation of this approach.
Lawrence Sager is Alice Jane Drysdale Sheffield Regents Chair in Law at The University of Texas; Frederick Mark Gedicks is Guy Anderson Chair and Professor of Law at Brigham Young University. The opinions expressed above are those of the authors and not necessarily those of their respective institutions.
A version of this op-ed appeared in the Austin American Statesman.