September 17 marked the two-hundred-twenty-seventh anniversary of the signing of the US Constitution. No part of this document has occasioned more contemporary comment than the religious clause of the First Amendment. This week, Cornerstone contributors debate the following questions: To what extent were the free exercise and non-establishment clauses intended to protect faith-based associations or for-profit corporations as opposed to individuals?

By: Leslie Griffin

The “statute did not make unlawful any religious practices . . . it simply made [them] more expensive.”—Thomas v. Review Bd., Ind. Empl. Sec. Div.

Religious belief should not be cost-free and government-subsidized. Yet from Thomas (1981) to Hobby Lobby (2014), the Supreme Court has mistakenly endorsed a cost-free, government-subsidized First Amendment. In doing so, it lost sight of the limits of free exercise and the requirements of establishment.

Thomas: Unemployment Compensation

Thomas applied for unemployment compensation benefits in Indiana after he quit his job at the Blaw-Knox Foundry & Machinery Co. Thomas initially worked in the company’s roll foundry department, which made sheet steel for a variety of industrial uses. After the roll foundry closed, Blaw-Knox transferred him to a department that made turrets for military tanks. Thomas, a Jehovah’s Witness, explained that his conscience allowed him to work indirectly with materials used to produce weapons but not directly with the weapons themselves. No indirect jobs were available at Blaw-Knox, however, so Thomas quit and applied for unemployment compensation.

The Supreme Court of Indiana denied Thomas benefits, ruling that the state law was “not intended to facilitate changing employment or to provide relief for those who quit work voluntarily for personal reasons … [the law’s purpose] is to provide benefits for persons unemployed through no fault of their own.”

The US Supreme Court reversed this decision by an 8-1 vote. Only dissenting Justice William Rehnquist had the foresight to realize both that the Free Exercise Clause should not be interpreted to guarantee cost-free religion and that the Establishment Clause should prevent government subsidies of religion. Free exercise, he wrote, does not require us to “conform the statute to the dictates of religious conscience.” Establishment, he concluded, does not permit “direct financial assistance to someone because of his religious beliefs.” After all, the “statute did not make unlawful any religious practices . . . it simply made [them] more expensive.”

Thomas is regularly and unreflectively celebrated as a victory for religious liberty and conscience. It is not. Its foundational principle—that religious believers are entitled to make any moral choice they desire without paying any cost while imposing the cost on others—denigrates both religious and constitutional values.

Thomas’s progeny, Burwell v. Hobby Lobby, proves the point.

Hobby Lobby: Preventive Health Care

Hobby Lobby and its companion case Conestoga Wood involved Christian and Mennonite business owners whose morality did not allow them to provide contraceptive insurance to their employees because the owners believed (religiously, not scientifically) that the contraceptives were abortifacients.

The government defended its insurance program on the grounds that the employees’ contraceptive use was so remote from the employers’ provision of insurance that the employers’ religion was not substantially burdened. Citing Thomas, however, the Court ruled it was not free to question the employers’ religious belief, nor even to ask them to prove that the contraceptives really were abortifacients. As in Thomas, a religious believer simply had to assert that an action violated his conscience, and then he would receive a cost-free result and a government subsidy.

Hobby Lobby is even worse than Thomas for three reasons.

First, it frees businesses of the costs of doing business, thereby undermining the rules of the marketplace. Although cost-free business should be an oxymoron, the Court has made it happen even though, unlike Thomas, businesses can’t exercise religion in any meaningful sense of the word.

Second, Hobby Lobby’s financial gain comes at the expense of its employees whose right to enjoy the insurance benefits accorded them by the Affordable Care Act (ACA) was completely dismissed by the Court. Moreover, Hobby Lobby’s defenders blithely assert that women and the government can easily pay for contraception, even though birth control is pretty expensive. Thus, costs matter for some but not others.

Third, thanks to Hobby Lobby’s interpretation of the “least restrictive means” prong of the Religious Freedom Restoration Act (RFRA), whenever the government either funds or could fund a program, a religious plaintiff can argue that the government funding is a less restrictive means than having the religious believer pay the price. As Professor Marci Hamilton has explained, “the least restrictive means becomes ‘anyone else should have to pay.’”

The result is cost-free, government-subsidized religious belief for some religious individuals and businesses.

Bearing the Cost

As with anything else in life, there is no such thing as a cost-free First Amendment. Everyone and anyone else is paying Thomas’s unemployment compensation benefits and the contraceptive insurance of women employed by religious corporations. In rejecting Rehnquist’s argument that the Establishment Clause does not permit “direct financial assistance to someone because of his religious beliefs,” the Court made other lives more expensive, especially the female employees of religious employers. Their costs didn’t count.

Leslie Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law and teaches classes in law and religion, torts, and professional responsibility. 

This piece was originally authored on September 22, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.