Ruling in favor of Hobby Lobby, the Supreme Court decided that companies with religious objections cannot be required to provide health coverage for certain contraceptive services. In this week’s conversation, scholars discuss the implications of this decision for religious freedom and explore the wider role of religion in American public life.

By: Micah J. Schwartzman

Although a lot of attention in Hobby Lobby was focused on whether corporations could claim rights of religious free exercise, the better argument for proponents of the contraception mandate was that corporations should not receive accommodations that impose significant burdens on third parties, including their employees. Until Hobby Lobby, and perhaps even after it, the Court has never granted an exemption to a for-profit corporation that shifted substantial costs onto identifiable non-beneficiaries.

In fact, prior to Hobby Lobby, there was clear Supreme Court precedent holding that under the legal standard established in Sherbert and Yoder—and later codified in the Religious Freedom Restoration Act of 1993 (RFRA)—for-profit enterprises are not entitled to impose their religious views on their employees by obtaining exemptions from comprehensive regulatory schemes. In United States v. Lee, the Court held that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”

The majority in Hobby Lobby disposed of this precedent in two ways. First, writing for the majority, Justice Alito said that Lee was a case involving income taxes. But perhaps because there is no obvious or persuasive factual distinction between the Social Security tax at issue in Lee and the healthcare regulations challenged in Hobby Lobby, the majority felt the need to offer an additional justification for disposing of its earlier decision.

So here is what the majority did: It claimed, for the first time, that RFRA marks “a complete separation from First Amendment case law.” That is, even if following Lee meant that the Court had to reject Hobby Lobby’s claim, that would not have mattered because Lee—like all other free exercise cases—was irrelevant for purposes of understanding the meaning of strict scrutiny under RFRA.

Although the issue of RFRA’s relation to prior case law was not directly presented, briefed, or litigated in Hobby Lobby, the majority nevertheless reached out to adopt what might be called the “radical break” theory of RFRA—or the radical theory, for short. According to this theory, the application of strict scrutiny under RFRA is entirely unencumbered by any prior free exercise decisions under the First Amendment.

The radical theory is not a new one. Its most prominent advocate, Michael Stokes Paulsen, developed it in an article published shortly after RFRA’s enactment. Paulsen claimed that RFRA was intended to restore the “high-water mark of free exercise accommodation, established by the cases of Sherbert v. Verner and Wisconsin v. Yoder,” but not the decisions in any other free exercise cases, including those such as United States v. Lee, in which the Court had explicitly applied strict scrutiny. As Paulsen put it, “[s]o far as RFRA is concerned … [t]he slate has been wiped clean (except, of course, for Sherbert and Yoder).”

To see how radical the Court’s theory is, consider three more moderate interpretations of RFRA. The first holds that RFRA restores the Court’s free exercise jurisprudence to the day before the Court decided Employment Division v. Smith, which held that neutral and generally applicable laws are not subject to heightened review when they impose substantial burdens on religion. RFRA’s purpose was to overturn Smith and to restore the status quo ante. We might call this the turn-back-the-clock theory.

A second theory, which we can label partial incorporation, holds that RFRA restores only those pre-Smith cases in which the Court had applied the standard set forth in Sherbert and Yoder—the same standard that RFRA mandates in its operative provisions. On this view, in applying RFRA, courts can ignore free exercise cases in which the Court declined to apply heightened scrutiny. But they cannot dismiss as irrelevant constitutional decisions in which the Court applied the same standard that Congress codified in RFRA.

A third theory, which has been adopted by some federal appellate courts, holds that while RFRA does not incorporate free exercise case law, earlier decisions applyingSherbert and Yoder are persuasive authorities that should guide the application of strict scrutiny under RFRA. Even if the statute does not codify those earlier cases, courts should give them significant weight in their decision-making.

Here, then, are four interpretations of RFRA: the radical theory, turn-back-the-clock,partial incorporation, and persuasive authority. Which of these is the most plausible understanding of the law?

The statutory text and legislative history of RFRA provide support for the turn-back-the-clock, partial incorporation, and persuasive authority interpretations. There is, however, little to support the radical theory. In terms of RFRA’s statutory text, Congress included a statement of findings that specify that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” Those “prior Federal court rulings” are not limited to Sherbert and Yoder. They cover a broader range of cases, including United States v. Lee, which relied expressly on Sherbert and Yoder in applying strict scrutiny to challenged regulations.

The legislative history of RFRA is, if anything, even worse for the radical theory. Over multiple Congresses, drafters of the legislation never—not once—suggested that RFRA marked a “complete separation” with the Court’s free exercise jurisprudence prior to Employment Division v. Smith. On the contrary, the House and Senate Committee reports contain extensive statements supporting more moderate interpretations of the law.

The Hobby Lobby majority offers one additional argument for the radical theory, which is that Congress passed a federal law (the Religious Land Use and Institutionalized Persons Act) that amended RFRA by expanding the definition of the phrase “exercise of religion.” As I have previously noted, and as others have argued, this amendment was designed to clarify existing law, ironically enough to bring it into line with doctrine under the Free Exercise Clause. There is simply no evidence that later amendments to RFRA were designed to work a radical break from earlier case law applying strict scrutiny to claims for religious accommodations. (And, in any event, the fact that development of the radical theory predates amendments to RFRA suggests that those amendments are not the actual basis for the theory, but rather a post-hoc rationalization for it.)

In Hobby Lobby, a bare majority of the Court adopted the most aggressive
and radical interpretation of RFRA with the least amount of textual and historical support. In doing so, the Court has dispensed with a long line of precedent, jettisoning principles that had been thought well established. Perhaps a future Court will revisit the question of how to understand the statute’s relation to free exercise doctrine under the First Amendment. Until then, however, the Religious Freedom Restoration Act stands in need of a restoration of its own.

Micah J. Schwartzman is the Edward F. Howrey Professor of Law at the University of Virginia School of Law. 

This piece was originally authored on September 11, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.