Monday, March 24, 2014

Whose Faith Does RFRA Protect? Everyone’s, No One’s, Or Not Mine?

Priscilla Smith

One outcome of tomorrow's Hobby Lobby case that this reproductive rights supporter might be able to get behind involves granting the Hobby Lobby Executives an accommodation from the Affordable Care Act’s contraceptive coverage requirements under an expansive view of the Religious Freedom Restoration Act (RFRA).  I’ve written about this possibility in a forthcoming article here.  Under this view, it is the RFRA claimant, not the court, who decides if something is a “substantial burden” on “religious exercise” under RFRA.  Counsel for the University of Notre Dame promoted this view of RFRA in a recent Seventh Circuit oral argument in a related case, stating “[i]t is up to the believer to draw the line.”  As Marty Lederman's excellent posts here revealing the lack of burden on Hobby Lobby Executives religious exercise should establish, in order to find for Hobby Lobby the Court needs to adopt this broad view of RFRA's protections. 
This broad view of RFRA’s protections, and the protections of state versions of RFRA, could mean a glorious birth of freedom!  Gone would be draconian limits on reproductive choice, including the federal discriminatory abortion funding ban (aka the “Hyde Amendment”), limits on sexual expression, limits on drug possession and drug use, requirements of service on juries, requirements that certain taxes be paid and census questions answered, and limitations on who and how many one may marry.
Previous Supreme Court jurisprudence would seem to require this outcome.  After all, as the Court noted in Employment Division v. Smith, 494 U.S. 872 (1990), the First Amendment prohibits judicial review of the “centrality” of conduct to an individual’s religion, the “relative merits of differing religious claims,” or “the determin[ation] of the place of a particular belief in a religion or the plausibility of a religious claim.”[1]  RFRA’s requirement that courts determine whether a burden on “religious exercise” is “substantial,”[2] requires the same sort of judicial review of religious tenets the Smith Court recognized as precluded by the Establishment Clause.[3]
Why avoid judicial evaluation of the relative burdens of secular rules on “religious exercise”?  In Smith, Justice Scalia explained the hands-off approach with reference to Justice Stevens’ explanation that this type of judicial evaluation of religious tenets would create “the risk that governmental approval of some and disapproval of others will be perceived as favoring one religion over another.”[4]  
This realization left the Court in an untenable position. On the one hand, courts can’t inquire into centrality because of the risk of creating a widespread perception of favoritism that will lead to internecine conflicts between individuals of different faiths and faith traditions.  On the other hand, “[d]ispensing with a ‘centrality’ inquiry is utterly unworkable.”[5]  It would require courts to equate burdens on throwing rice at church weddings to burdens on getting married in church.  Id.  Faced with this all or nothing approach to religious accommodation in Smith, the Court chose nothing and left individual assessments to Congress. 
By reimposing on courts the strict scrutiny test rejected in Smith, Congress has put the Court into the same untenable position it faced in Smith.  The Court can choose “nothing” again, insisting that conducting these determinations is beyond the “judicial ken.”  It could choose “all,” deferring to the plaintiffs' characterization of religious “exercise” and the “substantiality” of burden, as the Notre Dame counsel urged.  Or it could, as I expect it to, claim to be evaluating the substantiality of the burden in this case but in practice conduct no real evaluation at all, ignoring its earlier warnings about the discriminatory results that have occurred under this standard and are likely to occur again in the future.   
As I said above, I might welcome an expansive RFRA, one that would accept religious claims supporting reproductive and sexual freedoms as much as it accepts religious claims opposing reproductive and sexual freedoms—one where the individual’s conscience would rule.  But the Court itself already admitted in Smith that it can not apply the unbounded RFRA test fairly, equitably, or in a manner in accordance with the Establishment Clause.
The more likely result is a broad and protective RFRA for some, those with religious exercise claims the judges understand, and a weak RFRA for the rest of us, creating exactly the Establishment Clause problem the Court warned of in Smith.

Priscilla Smith is the Director and Senior Fellow of the Program for the Study of Reproductive Justice in the Information Society Project at Yale Law School.

[1] Smith, 494 U.S. at 887; id. at 886 (“nor is it possible to limit the impact of respondents’ proposal by requiring a ‘compelling state interest’ only when the conduct prohibited is ‘central’ to the individual’s religion”).
[2]  42 U.S.C. S 2000bb(b) (1).
[3] Smith, 494 U.S. at 887 (equating evaluation of centrality with, inter alia, substantiality) (citing United States v. Lee, 455 U.S. 252, 263 n.2 (1982) (Stevens, J., concurrence); Id. at 889 n.5; See also Priscilla J. Smith, Who Decides Conscience?  RFRA’s Catch 22, -- Brooklyn J. Law & Policy – (forthcoming 2014); Samuel J. Levine, Rethinking the Supreme Court's Hands-Off Approach to Questions of Religious Practice and Belief, 25 Fordham Urban Law Journal 85, 122-23 (1997) (RFRA’s substantial burden test “appear[s] to require courts to engage in the kind of investigation into religious beliefs that Supreme Court Justices have increasingly and nearly uniformly rejected”).
[4] United States v. Lee, 455 U.S. 252, 263 n.2, (1982) (Stevens, J., concurring).  See also Smith, 494 U.S. at 887 (discussing “unacceptable ‘business of evaluating the relative merits of differing religious claims’”) (quoting United States v. Lee).
[5] Smith, 494 U.S. at 887 n.4. 

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