For the first time, the court has interpreted a federal statute, the Religious Freedom Restoration Act (or RFRA), as affording more protection for religion than has ever been provided under the First Amendment. While some have read Hobby Lobby as a narrow statutory ruling, it is much more than that. The court has eviscerated decades of case law and, having done that, invites a new generation of challenges to federal laws, including those designed to protect civil rights.
To see how we got here requires some history. In the 1960s and 1970s, the Supreme Court adopted an expansive interpretation of the Free Exercise Clause of the First Amendment. In a pair of cases, Sherbert v. Verner (1962) and Wisconsin v. Yoder (1972), the court held that the government may not impose substantial burdens on religion unless it has a “compelling interest” and “no alternative forms of regulation” could be used to advance that interest. But in 1990, the Supreme Court repudiated this balancing test for assessing Free Exercise claims. In Employment Division v. Smith, which upheld a federal law banning the use of peyote, the court declared that generally applicable laws can incidentally burden religious practices without violating the First Amendment, and that the government does not need to provide any special justification for such laws.
And there was outrage about the Smith ruling, and that’s why Congress came up with RFRA and it passed almost unanimously.
But I hate that expansive interpretation of the Free Exercise Clause of the First Amendment in the 60s and 70s. I think Wisconsin v Yoder was a horrible ruling, which put parents’ religion ahead of children’s rights. But the new ruling is even worse than that, is Slate’s point.
Justice Samuel Alito claims that RFRA marks “a complete separation from First Amendment case law.” This is not a “restoration” of the legal principles that existed prior to the court’s decision in Smith. The majority isn’t just reading RFRA to overturn its decision in the much-maligned peyote case. It isn’t just bringing back the balancing test from its decisions in the 1960s and 1970s. Quietly, buried in the text and footnotes of the majority opinion, Justice Alito holds that RFRA is a complete break from earlier law, a discontinuity—not a “restoration,” but a revolution—in the test for protecting religious liberty.
By reading RFRA as creating a total break from decades of First Amendment jurisprudence, the court has freed itself from any precedent that would otherwise have blocked the outcome in Hobby Lobby. Before the Smith decision and the adoption of RFRA, every single free-exercise suit brought by a business was rejected by the court. The most important precedent is United States v. Lee, which rejected an Amish employer’s claim for an exemption from paying Social Security taxes. InLee, the court wrote 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.” It hard to imagine a precedent more directly foreclosing Hobby Lobby’s exemption to paying for contraceptive coverage under the Affordable Care Act.
But Lee was no obstacle at all for the majority. Moving right past it, as if it hardly registered anymore, Justice Alito wrote that “Lee was a [First Amendment] free exercise, not a RFRA, case.” From now on, only RFRA cases matter. The implication here is that none of the cases decided before the court’s decision in Smith are relevant to deciding the scope of religious liberty under federal law.
So now, perhaps, employers will be able to get “religious” exemptions from paying social security taxes…and unemployment insurance, and overtime; religious exemptions from environmental legislation; religious exemptions from science-based educational qualifications…the possibilities are endless, and nightmarish.