Congress should narrow RFRA

The Washington Post gives its (as it were corporate) view of the Hobby Lobby ruling and what it implies.

When business owners enter the public marketplace, they should expect to follow laws with which they might disagree, on religious or other grounds. This is particularly true when they form corporations, to which the government offers unique benefits unavailable to individuals.

The Supreme Court weakened that principle Monday. Congress should revitalize it.

That’s one good way of putting it. The public marketplace, like most public places, is fundamentally secular. Gods don’t need commerce or trade, because they don’t need goods and services, because they don’t need anything, because they’re gods. We need them, we humans, who live here in the secular world. That’s one reason we need secular laws and secular agreements and contracts and habits.

The Religious Freedom Restoration Act muddied these waters.

If this is the sort of balancing that the Supreme Court will conduct, Congress should change the law. The Constitution generally does not require religious exceptions to generally applicable laws. The ruling relied on the Religious Freedom Restoration Act, a statute that does not mention corporations and that lawmakers could easily narrow. They should not only guarantee contraception coverage but also repair the federal government’s ability to provide for wholly legitimate common goods such as public health and marketplace regulation.

Catholic bishops already interfere with a hefty percentage of US health care via all the Catholic-owned hospitals and networks of hospitals. Bishops and church doctrine should have no role in public health at all.


  1. thascius says

    Congress should, unfortunately the current Congress, (or at least the House of Representatives) would be much more inclined to broaden the RFRA than narrow it.

  2. says

    I don’t see how they can get the law changed unless it’s indirectly modified by another law that addresses people with power affecting the rights of others more broadly that also brings up non-religious examples. The political will to do what will be interpreted as “limiting religious freedom” is probably not there.

    I’m betting that they best we can hope for is a demonstration that the law results in de facto unequal treatment and therefore unconstitutional.

  3. Jon says

    I read the majority judgement a few times. My original feeling was that the decision was legally defensible (it is a possible interpretation of the law), if you sealed away concerns of the real world and considered only the “letter of the law”. The decision is still utterly wrong in my view, but defensible, if one assumes that everything will work out like the majority suggests it would, with women still receiving full coverage for no added cost.

    Once you step out into the real world, however, it becomes an unmitigated disaster. The ruling surely must apply to all contraceptives (not just the 4 complained of), there is nothing in the judgement to suggest otherwise, and no basis to discriminate between them in the ruling. But the most worrying is this idea of a “least restrictive method” from the RFRA. The SC relied heavily on the present exemption provided to non-profits, arguing that it can simply be applied to for-profits.

    Some have pointed to this explicitly and said “See? Women will still get birth control from the issuers. There’s no real issue”.

    Unfortunately, that is not *necessarily* so. The court did not actually rule on whether those exemptions actually do pass the test. It is possible they may not (although it is implied they would. Kennedy’s vote in particular seemed to depend on it.) Further, I believe the court specifically mentioned the idea of the Govt. paying for it as a further alternative. (I think I read, but can’t find the source, that an Alabama court recently ruled that the exemption is inadequate for non-profits, since they indirectly pay for it anyway.)

    Imagine it like this:

    Hobby Lobby case decision: “The mandate is not the least restrictive way, you could use this exemption”.

    Later case decision: “Your exemption is still not enough, they pay indirectly. The government could just pay for it.”

    Although the court strongly hinted it would be enough, it’s not a guarantee. I’ve been slightly disappointed in the UK media coverage. The articles I’ve read have made little mention of the root cause of this decision, the RFRA. If one ha not read the decision, one could be forgiven for almost thinking that the judges had just made up a random rule and gone with it. I would much rather a stronger lens was placed by the media on how damning allowing a law like the RFRA to be on the books is.

    As a final point, I know Alito said the case doesn’t apply to blood transfusions and the like, but frankly, it must do. Why would contraception be affected but not blood transfusions? There is no legal basis to exempt it from what I can see. After all, according to SCOTUS, you can always just use an exemption!

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