In the US, legal challenges on the role of religion in public life are governed by the section of the First Amendment to the US Constitution that says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. It is the first part, known as the Establishment Clause, that has been in the news recently and comes into play whenever the government takes any action that leads to suspicions that it is endorsing any or all religions. The second Free Exercise clause basically guarantees that people should be free to practice their religion as they see fit.
It is not hard to see that those two clauses are likely to collide from time to time, since the requirement to keep church and state separate may impinge on the religious practices that people can do. For example, in the Greece town council prayer case, does the requirement not to open the sessions with a prayer (Establishment Clause) impinge on the councilors’ right to pray (Free Exercise)?
Of course, everyone recognizes that there are limits. Religious practices that violate other laws are the usual problem. Human sacrifices to appease their gods would clearly not be allowed under the Free Exercise clause, however essential that practice was to the religion. But we have numerous cases of people objecting to medical treatment of their children on religious grounds, with children dying as a result. Is the government violating parents’ Free Exercise rights by demanding that children be given proper medical care?
In general, if the government passes a law that is generally applicable to everyone, then even if it impinges on some religious beliefs, it is assumed to be legal if the infringement is incidental and not targeted at those religious beliefs. But in 1993, in response to concerns that religious practices were being unduly infringed upon, Congress passed the Religious Freedom Restoration Act (RFRA, referred to popularly as ‘riffra’). The law is quite brief and its key operative Section 3 states:
(a) IN GENERAL.—Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION.—Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) JUDICIAL RELIEF.—A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
Section 7 of the Act also says that “Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”).”
Thus the government is now required to show that if it takes any action that impinges on the religious freedom of anyone, it has to show that it has a ‘compelling interest’ to do so and that it has no other choice. I have noticed in recent times, ever since Establishment Clause cases have not been going in favor of religious people, that there has been a rise in the number of claims that it is their ‘religious liberty’ that is being violated.
One major case testing this is now before the US Supreme Court. It has agreed to hear the challenge of two companies that some provisions of the Affordable Care Act impinge on their religious freedom, In particular, they argue that the requirements that health insurance coverage cover birth control and related medical issues violates their religious beliefs.
The plaintiffs are Hobby Lobby and Conestoga Wood Specialties, two private companies whose owners are religious, and the question is whether the owners’ religious rights can pass through to the company they own and if so whether the ACA infringes on their religious beliefs.
Lyle Denniston at SCOTUSblog explains what is at issue.
Under the orders the Court issued in the health care cases, the Justices are not being asked to strike down the requirement that employers provide a full range of pregnancy-related health care under their employees’ health insurance plans.
This time, the Court will be focusing only on whether the pregnancy-related care coverage can be enforced against profit-making companies — or their individual owners, when that is a very small group — when the coverage contradicts privately held religious beliefs.
It is already clear, of course, that individuals — whether they own businesses or not — do have religious beliefs that the government may not try to regulate. But it is not yet clear, and these cases will test the issue, whether they have a right — constitutional or based on a 1993 federal law — to rely upon those beliefs in refusing to provide a kind of health care coverage that they say violates the tenets of their faith.
On the other hand, it is not clear that a business that is formed as a corporation, and engages in a strictly commercial kind of activity, can have religious beliefs and can actually base its commercial actions upon such faith principles (separate from the religious beliefs of its owners). The Court has never ruled on that issue, but that is one of the core issues it has now agreed to consider.
The court will have to judge four things. One is whether a corporation is entitled to religious rights like a human being. If yes, whether the owners’ religious beliefs pass through to it. If yes, whether the ACA requirements impinge on those beliefs. If yes, whether it has a compelling interest in doing so and has no less restrictive option at its disposal.
A ‘no’ answer at any stage makes the later questions moot. I hope the answer to the first question is ‘no’ but given the history of this court and the precedents in which corporations have been granted the right to be treated as persons under the constitution and that has led to such things as the Citizens United ruling that allows them to pour money into elections, I fear that the answer to the first three questions will be ‘yes’.
Hence the government will also have to argue that the ACA is a generally applicable law and that it has a compelling interest in enforcing it uniformly and that there is no less restrictive alternative available to it.
Oral arguments have not been scheduled. They are likely to be held in March with the verdict delivered sometime in the summer.