The New York Times' Room for Debate: Does the Religious Freedom Restoration Act Go Too Far?
Marci A. Hamilton, the Paul R. Verkuil chair in public law at Benjamin N. Cardozo School of Law, Yeshiva University, is the author of "God vs. the Gavel: The Perils of Extreme Religious Liberty." She wrote an amicus brief in the Hobby Lobby case, arguing that the Religious Freedom Restoration Act was unconstitutional.
UPDATED JULY 1, 2014, 1:24 PM
In her dissent on Monday, Justice Ruth Bader Ginsburg stated that the "court, I fear, has ventured into a minefield." True enough, but the branch responsible for this minefield for employees, minorities and women is Congress, which passed the Religious Freedom Restoration Act in 1993 under the false pretense that it “restored” prior Supreme Court First Amendment law. Nothing could be farther from the truth.The good news: The majority refreshingly and explicitly states in footnote 3 and accompanying text that, yes, the law goes much farther than the First Amendment.
Five months before the religious freedom act was enacted, the Supreme Court rejected the test the law codified. In Church of Lukumi Babalu Aye v. City of Hialeah, despite the church’s urging, the court declined to adopt the “least restrictive means” test. That is the test that won the day for Hobby Lobby,Conestoga Wood and more than 50 other companies challenging the Obama administration. Then, in 2000, when the law was re-enacted and the Religious Land Use and Institutionalized Persons Act was passed, Congress abandoned any pretense to being just a First Amendment doctrine restoration.
The bad news: The Religious Freedom Restoration Act's extreme test in the hands of this Supreme Court permits owners of “closely-held corporations” (over 80 percent of all corporations in the country) to use their religious beliefs to avoid paying for their female employees’ health care needs. Moreover, they can do so even if their religious beliefs are not based in medical science – for example, with Hobby Lobby’s objection to emergency contraception as an abortafacient. The law opens no door to consider the burden on the female employees affected, and so corporations have won against individual employees who do not share their religious world view.
The upshot of the decision is that Hobby Lobby, Conestoga Wood and many other closely held corporations can now avoid paying for contraceptive coverage, because the court held that there are three lesser restrictive alternatives: the government pays, the women pay or insurance companies pay. Anyone but the billion-dollar corporations with religious owners. For the federal government to serve its compelling interest in contraceptive health care coverage without burdening the female employees supposed to be protected, it may well have to pay. That’s right, who are the big losers today? Taxpayers.
Though, if Congress or the Obama administration do not choose to foot the bill, female employees are simply out of luck. That makes them the losers. The court’s feeble attempt to say that other medical treatments are safe from such religious attacks is completely unpersuasive, because the way they interpreted the religious freedom law today opens many doors for such attacks.
The decision itself also crosses the line of the separation of church and state. The law that required all employers to cover wellness care for women, including contraceptive care, applied to all for-profit corporations. Now most of those corporations do not have to pay for contraceptive care – they get the fiscal benefit of the plan’s cost savings as a result of their employees using contraception, and the taxpayers are paying solely because of the employers’ religious beliefs. James Madison, who advocated “not one penny” of government support for religion, is turning over in his grave.
The Religious Freedom Restoration Act should be repealed because it is unconstitutional, unprincipled and a sword believers gladly wield against nonbelievers.