In the United States, the Supreme Court tells us, corporations have the status of “people” and thus have attendant constitutional rights including freedom of religion. That allows corporations to decline to participate in aspects of Obamacare if it considers that doing so would be against the corporation’s religious beliefs.
This landmark “Hobby Lobby” ruling followed predictable lines, with five Catholic judges out-voting the Court’s four moderates. Much of the commentary has focused on the doctrine of awarding personhood to corporations. An equally important issue, however, is the role of the 1993 Religious Freedom Restoration Act, whose effects are seen for the first time.
That Act would have been better named the Religious Privilege Establishment Act. It requires that the:
“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”, with allowed exceptions only where the burden “furthers a compelling governmental interest”, and in addition “is the least restrictive means of furthering that compelling governmental interest”.
This privileges the religious since it grants greater import and status to a religious motivation for doing or not doing something than to a secular motivation for the same thing. Through this promotion of religious belief it is a law “respecting an establishment of religion” and thus it violates the First Amendment.
Since 1971 the Court has adopted the three-pronged “Lemon test” to judge establishment of religion. This requires that a statute must not: (1) result in an excessive government entanglement with religious affairs, nor (2) advance or inhibit religious practice, and (3) that the statute must have a secular legislative purpose.
Privileging religious motivations over secular motivations clearly advances religious practice, violating the second prong, and has no secular purpose, thus violating the third prong.
The Religious Freedom Restoration Act was passed as a reaction to the 1990 Employment Division v. Smith ruling, in which Scalia et al had held:
Although a State would be “prohibiting the free exercise [of religion]” in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.
The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections.
The Court had it right in 1990. Equality under the law and non-establishment of religion require that a religious belief or motivation should neither privilege nor disadvantage anyone. The Establishment Clause of the First Amendment equates to that lack of privilege, and the Free-Exercise Clause to the absence of disadvantage.
The 1990 Smith ruling was controversial since Christians had previously presumed that religious belief granted greater privilege, requiring the government to try hard to avoid burdening religious practice. The 1993 Act was passed to “Restore” that presumption.
Yet, while the Court, on occasion, had indeed considered the burden of secular laws on religious practice, this had always been very limited. As Scalia explained, such rulings had involved “… not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections”.
Take, for example, the much-cited Wisconsin v. Yoder ruling, which upheld the right of Amish families to home-school their children. The argument there was crucial: it was predicated on a general right of all parents to home-school children (the 1925 “Pierce” ruling), provided only that that education was sufficient and adequate to prepare them as future citizens. The state had not demonstrated any insufficiency of the Amish’s religious-flavoured home schooling, therefore it was wrong to demand attendance at state schools. So it was not that religious parents had a right to withdraw their children when non-religious parents did not, it was that all parents did, which thus included religious home-schooling.
Thus the “right” that was “restored” in the Religious Freedom Restoration Act had never actually existed. Previously, religious freedom was simply part of a more general package of rights that applied to everyone (as enunciated in the “hybrid rights” doctrine of Scalia’s Smith ruling). The Religious Freedom Restoration Act goes well beyond any previous constitutional provision for religious belief and establishes a privilege for religiously motivated desires that the non-religious do not have.
The Constitutionality of the Religious Freedom Restoration Act has never been tested, and was merely presumed in the Hobby Lobby ruling. Given the current Court’s highly-religious make up it is unlikely to be challenged, but the dissent by Justice Ginsberg is full of worry that “The Court, I fear, has ventured into a minefield” through its reading of the Act, saying:
There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude”.
Justice Ginsberg is right: the Religious Freedom Restoration Act is incompatible with the Establishment Clause of the First Amendment; it does not uphold religious freedom, it establishes religious privilege, and it will lead to ongoing trouble.