Professor Marci Hamilton, one of the United States’ leading church/state scholars and the Paul R. Verkuil Chair in Public Law at Cardozo, has been publishing a series of commentaries on Sebelius v. Hobby Lobby Stores, Inc. See the links below to read her posts:

April 3, 2014: The RFRA Black Box
April 1, 2014: The Top Ten Facts About the Oral Argument in Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius
March 24, 2014: The 800 lb. Gorilla in the Courtroom in the Argument on the Contraception Mandate Clause


The RFRA Black Box

April 3, 2014 Alliance For Justice - There was a time when the Religious Freedom Restoration Act (RFRA), the law at the base of the Hobby Lobby and Conestoga Wood Specialties contraception mandate cases at the Supreme Court, appeared shiny and noble.  It was all about our beloved American religious liberty.   As it turns out, though—and these cases have made clear—it is in fact a black box.

And who delivered this shiny black box to us?  Congress, which blindly trusted religious lobbyists—specifically the self-named Coalition for the Free Exercise of Religion—to be honest about religious liberty doctrine, the state of religious liberty across the country, and their true intentions if RFRA passed.  Yet, the Coalition was not forthcoming about any of these.

Congress leapt to be our religious savior by enacting RFRA, instead of asking the obvious question of the religious lobbyists: so what laws do you intend to break?

Members didn’t plumb the depths of the law in part because they were agog that religious groups and civil rights groups were joining forces.  Unfortunately, since the civil rights groups didn’t dig deep, either, the religious groups got a free ride like never before.  Finally, the truth is emerging for all to see:  Congress enacted a law that severely constrains every federal law in ways never before possible, and the only people who understood which laws were at risk were the religious lobbyists.

RFRA’s black box quality was central to the oral arguments in Hobby Lobby and Conestoga Wood Specialties, which were heard together last week.  Justice Ginsburg asserted, quite reasonably, that it seemed odd that, “People from all sides of the political spectrum voted for” RFRA if Congress had intended the law to mean that for-profit corporations can trump the federal civil rights laws.  Similarly, Justice Kagan—who, as Deputy Director of the Domestic Policy Council for President Clinton, was involved in attempts to enact a new RFRA (now called the Religious Liberty Protection Act) in 1999, after the law was held unconstitutional as applied to the states in 1997—also expressed disbelief that RFRA could mean what Hobby Lobby and Conestoga Wood insisted it must mean.  Justice Kagan said, incredulously, that their “interpretation of [RFRA], would essentially subject the entire U.S. Code to the highest test in constitutional law.”

The Building of the Black Box       

First, the very title of the law—the Religious Freedom Restoration Act—is misleading.  It claims to be a “restoration” of something, but turns out to be a grab for new rights.  As many are acknowledging, there is an element in RFRA—a “less restrictive means” test—never before seen in religious liberty cases in the United States, and it is a game-changer.  Justice Scalia made it a point during oral argument to obtain agreement from both sides that this test was never part of the Court’s doctrine.  Agree they did, as they had to.
This newly invented element forces the government to prove that the law is the “least restrictive means” of governing for this religious believer.  It is, in fact, the next kin of sheer narcissism and the sort of solely self-centered right that the First Amendment has never observed and that our religiously diverse culture cannot peacefully sustain.

The good news is at least we have clarity: no one in the future should accept as true a statement that RFRA is simply restoring prior law, with its implicit premise that if it is the standard we have always had, it can’t hurt.  It’s not, and it does.

Second, when RFRA was passed not just once (1993), but twice (2000), the religious lobbyists tried to gin up a story of religious discrimination.  The actual legislative history shows, however, that RFRA’s passage was not about discrimination, but rather inconvenience.  For example, the religious lobbyists did not want to have to be burdened by ordinary burdens in the land use process.  But, as anyone who has ever built something from the ground up would say, who does?  Although Senators Kennedy and Hatch declared in a joint statement that RFRA was all about discrimination—and that one line has been good enough for lobbyists and judges—the truth of that statement it is not borne out in the legislative history, or, more importantly, recent United States history.

Now that the public understands that the very title is a lie, I hope that they will also take these claims of discrimination with a grain of salt.  If you were to actually read the legislative history, however, I would issue one caution.  The record does not include most of the objections raised from 1997-2000, e.g., by New York Mayor Giuliani or former Sen. Patrick Moynihan or the brilliant sociologist of religion, Mark Chaves.   Those were excluded, showing once again that RFRA’s enactment and transparency are not synonyms.

Third, and this is the element that is spotlighted by these cases: RFRA was motivated by religious organizations that embrace agendas deeply at odds with civil rights, to the detriment of women, homosexuals, and employees whose faith differs from their employer’s.   During the law’s enactment, as the Christian Legal Society’s (CLS) amicus brief in the Hobby Lobby case shows, there was a pact among religious lobbyists: I won’t agree to an exception that would hurt your practices so long as you don’t agree to any exceptions that hurt mine.  How did they accomplish this?  By refusing to talk about their own secret agendas to members of Congress or amongst themselves.  Solicitor General Donald Verrilli stated during oral arguments that it was inconceivable that “Congress meant to . . . to obliterate” Title VII’s distinction between religious corporations and non-religious corporations in passing RFRA.  I agree, but at the same time, the truth is that Congress had little idea what it was enacting.

You may wonder how the ACLU sat at the same table with the Christian Legal Society when RFRA was first passed.  That was made possible because the CLS was silent about its agenda, and the ACLU was, well, unfortunately misled.  The ACLU peeled off eventually, and now fights against the state RFRAs that are threatening same-sex couples—and against these for-profit employers trying to shut down women’s reproductive health coverage—but it is unfortunate they did not make this move much sooner, say as early as 1990.

What To Do

It turns out that the RFRA black box is Pandora’s. Congress has the power to close it, but only if it has the will to stand behind the United States Code.  One tack would be to enact exemptions to RFRA for specific federal laws.   As Chief Justice Roberts said in oral arguments last week, “if Congress feels as strongly about this as [the government suggests], they can always pass an exemption, an exception to RFRA.”

Yet, now that we know RFRA is based on false premises, hidden agendas, and fosters demands to discriminate, it seems daft to preserve it so we can be surprised yet again.   The smarter tack, in my view, would be wholesale repeal.  Let the First Amendment and the Justices do the job they were doing very well until RFRA shouldered them aside.

Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University.  Her next book, God vs. the Gavel: The Perils of Extreme Religious Liberty (Cambridge University Press), will be available later this spring.


The Top Ten ”Fun Facts” About the Oral Argument in Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius

April 1, 2014 Hamilton and Griffin on Rights -

1.   The more junior the Justice, the more she or he spoke at the oral argument, all the way down the line, except for Justice Kennedy who spoke more often than his seniority would have predicted (and Justice Thomas, who never speaks during oral arguments).

2.  Contrary to his public image as a dogged and frequent questioner, Justice Scalia only spoke more than Justice Thomas, who spoke not at all.

3.  Justice Scalia used most of the few words he uttered to obtain agreement from both sides that RFRA includes an element—the “least restrictive means” test–not present in the Court’s previous free exercise doctrine.   They both agreed, because it is true. In other words, RFRA does not “restore” the Court’s doctrine at all.

4.  The lawyer for Hobby Lobby and Conestoga Wood, Paul Clement, was pressed on what was the government’s “least restrictive means” of ensuring that all women obtain contraceptive coverage.  Here is the answer: “the most obvious least restrictive alternative is for the government to pay for their favorite contraception methods themselves.”   I am sincerely hoping he’s correct, because if he is, I just started the Church of Pay No Taxes, and I can assure you that when the IRS calls, I will invoke RFRA and argue that the least restrictive alternative is for the government to pay for all government services itself so I don’t have to.  That is as “least restrictive” as it gets, no?  Otherwise, I might be complicit in the tax system I don’t believe in.

5.  Clement needed the mythology woven around RFRA to make his arguments.  First, he talked about the supposed “unanimity” behind RFRA, even though it never did pass unanimously in any House.  Second, he made perhaps the most laughable point of the day when he asserted that when RFRA was enacted “everybody in Congress got together and said, all right, you have some claims you actually want to be vindicated, you have some claims you want to be vindicated, we’ll vindicate all of them.”   That is precisely what did not happen during RFRA’s enactment.  The members had no idea what each religious group actually intended, the groups had a deal that they wouldn’t talk specifics, and the members never asked the hard questions.  RFRA was a black box for the members of Congress.

6.  Clement also made the entertaining point that the Court’s reasoning should “start with O Centro,” which was the RFRA case decided by the Court in 2006, where the Court held that RFRA trumped the federal drug laws.  The case involved a religious group that uses ayuhasca tea during its rituals, the active ingredient of which is DMT, which is on the federal controlled substances list of drugs for which there are no known therapeutic uses.  He might want to hold off on endorsing that result.   Recent coverage indicates that the decision opened the door to shamans who are now distributing the tea and its hallucinogenic experience broadly to wealthy men and women for purposes of psychological (not religious) revelation; that some of the shamans are raping the women once they take it; that it is dangerous if taken with certain prescription drugs, but no one really knows because the FDA has never tested or cleared it, and it is not prescribed by a doctor or sold through a licensed pharmacist; and that some young women are experiencing debilitating psychological difficulties following its ingestion. Now, that’s a legacy to be proud of.

7.  Chief Justice Roberts appears to believe that Congress has enacted exceptions to RFRA.   It never has.  Oddly, Solicitor General Verrilli did not correct him on this misimpression.

8.  One of the most opaque points was made by Justice Kennedy, who was concerned about the fact that some of the ACA’s accommodation for religious nonprofits (beyond churches) was crafted by HHS, an agency, rather than Congress.  He seemed to be saying that this could pose a non-delegation problem (i.e., the law is supposed to be made by Congress, not delegated by Congress to be made by the executive).  Yet, he had to concede that the Court had not held a tight rein on delegation (to put it mildly), and so what he meant was that when “we have a First Amendment issue of – of this consequence,” there can’t be delegation.  This was shocking, given that since the American Trucking case, everyone who fought delegation has thought it a dead letter, and because earlier in his questions he had stated that he believed the case could be decided just based on the statute, without reference to the First Amendment.   I’m still puzzling over this one.

9.  Our newest Justices are on the cutting edge.  Both Justices Sotomayor and Kagan mentioned that if Hobby Lobby or Conestoga Wood were to win, then the door would open for an employer to refuse to provide vaccination coverage, because it violates his or her religious beliefs.  Right now, there is a measles epidemic in the United States, which is a disease many in the health care community believed several years ago had been eradicated.  Doctors are warning about a return of polio, mumps, and whooping cough because of the parental failure to obtain vaccinations for so many children.  Creating more pressure against vaccinations will push us well  under the herd immunity we need to stay healthy.

10.  Justice Ginsburg made a point that deserved more attention than it got when she said that “RFRA wouldn’t apply to Title VII” because it postdated Title VII.  In fact, it is a violation of due process to retroactively apply a substantive change to a law (which RFRA is) under settled Supreme Court doctrine.   Why does this matter?  If Hobby Lobby were to win against the ACA, when its female employees or a civil rights group turns around and sues it under Title VII, it will not have a RFRA defense.  That means its female employees will win, because Hobby Lobby’s health care coverage discriminates on gender and religion.


The 800-lb. Gorilla in the Courtroom During the Argument on the Contraception Mandate Cases

March 25, 2014 Hamilton and Griffin on Rights - During the oral argument of the contraception mandate cases, both parties’ lawyers and the Justices circled around within the Spirograph that is the Religious Freedom Restoration Act.   Did Congress intend to include large, for-profit corporations like Hobby Lobby or any for-profit corporation itself?  Then its statutory terms flew around the room: “substantial burden” and “compelling interest” and “least restrictive means.”

Let me just say at the outset that it was refreshing to hear everyone agree, at least, that the “least restrictive means” test in RFRA is nowhere to be found in the Court’s free exercise cases.  It is about time that RFRA’s camouflage of reasonableness is yanked away and Americans can see it for what it is: extreme religious liberty, unlike any in our history.

What was missing was a dose of reality.  That was particularly apparent when Justice Alito made the following point:

JUSTICE ALITO:  What about the implications of saying that no for-profit corporation can raise any sort of free exercise claim at all and nobody associated with the for-profit corporation can raise any sort of free exercise claim at all? Let me give you this example. According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane. Now, suppose Congress enacted something like that here. What would the — what would a corporation that is a kosher or halal slaughterhouse do? They would simply — they would have no recourse whatsoever. They couldn’t even get a day in court. They couldn’t raise a RFRA claim. They couldn’t raise a First Amendment claim.”  (Supreme Court oral argument, March 25, 2014)
The line completely divorced from reality is this one:  “they would have no recourse whatsoever.”

How can anyone argue that religious believers in the United States would have “no recourse whatsoever” if they lacked RFRA and could not automatically trump any neutral, generally applicable law?    It is certainly an odd point to be made in the midst of an oral argument involving the single most religion-friendly law in the history of the United States.  But set aside RFRA (please) to look at whether even without RFRA there would be recourse.

A Bit of Free Exercise History that Should Not Be Forgotten

As we all know by now, in Employment Div. v. Smith, the Supreme Court held that drug counselors do not have a free exercise right to use peyote, an illegal drug in Oregon, even if they are used as part of a religious ceremony.   The decision led to two parallel results:

1.  Religious lobbyists leapt across the street to ask Congress to give them more religious liberty than they ever received before because the Court had utterly “abandoned” religious liberty.

2.  One state after another, including Oregon, and the federal government enacted exemptions for the sacramental use of peyote.

Hmm.  Now let’s make sure everyone is on the same page here.  After Smith, the small minority Native American Church believers obtained an avalanche of legislative exemptions.  Moreover, the Smith Court had predicted just such a response:

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. 
And let’s not stop at the legislative solicitude for the need to use peyote, and let’s be clear about the thousands of religious exemptions that span this country, including ones that are utterly against any sensible public policy, like exemptions from criminal and civil laws against the death of children from easily treated medical ailments.

The exemption universe lurked in the background of the argument today as Justices even had exchanges with the lawyers about the many abortion exemptions that run through federal (and state) law.  But this was only because certain Justices are adamantly opposed to abortion (and not just to the doctrine of Roe v. Wade that accords women the right to control whether they obtain an abortion).

RFRA was demanded in 1993 and in 2000 without any reference to the vast swath of religious exemptions in the United States, and Congress foolishly asked no hard questions, because it trusted religious believers to tell the truth

(1) about the doctrine;

(2) the actual state of religious liberty;

and (3) their true intentions if they obtained RFRA.

They were forthcoming about none of these.  If I have not made my point clearly enough, RFRA was a hoax on Congress.  Now it is threatening women, employees, and the vulnerable.  That was never more clear than during today’s oral argument.

The 800-lb. Gorilla in the Courtroom

The 800-lb. gorilla lurking in the courtroom was the political reality of religion in the United States, which makes the Reynolds/Braunfeld/Lee/Smith/Lukumi rule sensible, and the RFRA rule nonsensical.  Religious lobbyists have a long, successful history of obtaining what they seek in the legislatures.  Members irrationally quake when they face religious lobbyists, who purport to represent thousands if not millions of believers all by themselves (as though Americans don’t vote their own consciences).

That the anti-contraception and abortion religious forces failed to move contraception out of the Affordable Care Act’s mandated coverage speaks volumes about the government’s compelling interest.  Politicians simply do not stand up to such lobbyists unless they are absolutely committed to the policy goal.

This gorilla obviously was walking the halls of the Department of Justice as it considered what arguments to make in this case.  Instead of taking the strongest position it could to protect women from discrimination based on gender and religion, as it should have, it eschewed the constitutional arguments against RFRA that would at least narrow its application.  The DOJ also failed to push the strong Establishment Clause arguments against this extraordinary extension of RFRA to for-profit corporations.

Actually, the gorilla has seemed to have a stranglehold generally on the Obama Administration until now.  The President gave a stirring speech about the separation of church and state before first being elected, but has not followed through on such principles, instead deferring to religious entities, even in extreme circumstances.  For example, his Administration backed the Vatican in its only child sex abuse case to make it to the Supreme Court.  But that, my friends, is a story for another day.