The court has eviscerated decades of case law

Slate has a frightening analysis of the Hobby Lobby ruling.

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.


  1. Anthony K says

    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.

    Now we will learn that the religions of the world’s corporations do not share some vague ‘golden rule’, as the pan-religionists like to claim, but instead recognize the divine supremacy of the bottom line.

  2. iknklast says

    Not to mention, that whole idea of closely hold company – more than 50% of Wal-Mart stock is owned by the Waltons. That might make it eligible for exemption under the Hobby Lobby case…now wouldn’t that be ridiculous? But not to the court. The Waltons are hyper-religious, so if they don’t want to, they shouldn’t have to. Sincerely held belief, and all that. Of course, it might not affect many people at Wal-Mart, since few of their employees can afford their coverage anyway. Most of them are probably on a private plan under ACA, if they can get assistance.

  3. Crimson Clupeidae says

    I think even the majority recognized that this was an issue. In addition to the footnote you point out, they try to specifically include other potential religious objections like blood transfusions. However, they don’t give any legal reasons for this, they just say it isn’t covered. All this really means is that if a xian scientist employer doesn’t want to cover anything that might involve blood transfusion, they will have to specifically challenge it in court, but if the reasoning of this case is followed, the employer will win that case.

    It might be fun to watch as lower courts take this to logical conclusion, either out of ideology or spite for said ideology, but a lot of people are going to suffer for it, potentially.

  4. Chris J says

    Alternatively, maybe the flood of cases with other things like blood transfusions will force the court to revisit Hobby Lobby. There’s only so many times you can say “that’s different” before even the people who wanted Hobby Lobby to win ask “why?” I really hope this is the way it works out, and that the Hobby Lobby decision remains a thorn in the court’s side until it is finally overturned.

  5. zubanel says

    It appears that if the government loses money or benefits, no religious exemption can be made. If however the public, individual citizens lose money or benefits, well we just have to be tolerant of religious views.

  6. Chris J says


    After some quick googling, HowStuffWorks apparently just barely managed to scrounge up 10, so it doesn’t happen often at all. However, it does appear that if the law changes, that change of circumstances gives SCOTUS a reason to overturn a previous decision based on the old law.

    The best option seems to be for congress to change or eliminate RFRA.

    Who knows, though. SCOTUS does legally have the power to overturn itself, though there’s usually a long time delay, so it could be possible. Or maybe the court will just dig in its heels and insist that Hobby Lobby can’t be used as precedent for other cases… I dunno. I can’t imagine they would actually follow through and rule in favor of the religious for a wide variety of exemptions.

  7. Crimson Clupeidae says

    zubanel: especially if’n it’s wimmin’s (lack of) rights we’re talkin’ about here, amiright!?!

  8. deepak shetty says

    Now we will learn that the religions of the world’s corporations do not share some vague ‘golden rule’,
    Ha1. I too was thinking that the “ground of all being” or “the ultimate concern” or the “first cause” takes too special an interest in sex and contraceptives.

  9. screechymonkey says

    There’s quite a few examples of SCOTUS overturning prior decisions; although I can’t think of more offhand, I’m pretty sure that estimate of 10 upthread is rather low. (A couple more examples off the top of my head: Lawrence v. Texas reversed Bowers v. Hardwick. Citizens United overturn one of the prior campaign finance cases whose name eludes me at the moment. Garcia overruled National League of Cities on the applicability of the Federal Labor Standards Act to state government employees. I believe there was a change in antitrust law in recent years, too.)

    Some of that is a definitional issue, though. Sometimes a case isn’t explicitly overruled in its entirety, but is modified or “disapproved to the extent it is inconsistent with this opinion [in a newer case]” Sometimes a precedent is distinguished and chipped away at so much that essentially none of its original meaning is left, which the Court occasionally will acknowledge. Arguably that’s what is happening to Bakke (the affirmative action decision), and it’s the fate I fear for Roe. A lot of the Lochner-era Supreme Court decisions from the 1920s were never entirely overruled, but aren’t really thought of as being viable precedents after some of the New Deal-era decisions.

    And of course sometimes Congress or the state legislature changes the statute. SCOTUS struck down all capital punishment laws in Furman v. Georgia (1972), but left open the possibility that a better-designed system would withstand review, and in Gregg v. Georgia (1976) a new death penalty statute was upheld.

    But I digress. I think generally speaking, the Court is very reluctant to explicitly overturn a recent decision. Even if — in fact, I’d say especially if — there’s been a change in personnel in between. Usually enough time has to pass for the Court to be able to say “well, it turns out that this rule was unworkable” or that “times and circumstances have changed.”

    But I would not be at all shocked to see a few 7-2 decisions in upcoming years in which Alito, Roberts, and Kennedy team up with the Hobby Lobby dissenters to brush back any attempts by lower courts to expand the scope of the decision. The Hobby Lobby majority created a big mess for the lower courts to sort out, and the justices who promised that this was a narrow decision that won’t lead to those consequences are going to have to help clean it up.

  10. dmcclean says

    @6, and Ophelia @10

    Perhaps the best known example of the court reversing itself quickly is West Virginia State Board of Education vs. Barnette, in which the 1943 court reversed the opinion of the 1940 court on a case presenting an essentially identical question. (That case being Minersville School District vs. Gobitis).

    It may superficially appear to be even more on point because the plaintiffs in both cases were Jehovah’s Witnesses, but the connection is somewhat illusory. Mostly because the Barnette court correctly (IMHO) relied on the free speech clause and not the free exercise clause in writing their decision.

    That was a different time, though, before movement conservatism’s project to take over the court and use it to carve out the good parts of the American experiment from the inside got underway.

  11. Sili says

    So what’s the problem in getting rid of RFRA if this has nothing to do with the First Amendment? Then there won’t be a need to get the SC to reverse itself.

    But the new ruling is even worse than that, is Slate’s point.

    Interesting construction from someone who usually complains about non-standard Englishes.

  12. says

    The problem in getting rid of it is the totemic status of religion and “religious freedom” in this stupid country. The law passed all but unanimously – 3 Senators voted no (so 97 voted yes) and the House was unanimous – and the religious domination has only increased since then. There’s not a chance in hell of repealing RFRA.

  13. Sili says

    Of course, but it’s still a far better target, than trying to argue for a change to the First Amendment at the moment.

    Everyone seems to agree that this decision is an unintended consequence of the law, so why not at least try to campaign for the repeal of the RFRA through secular organisations and get Democrats to comment on it? Kick up a fuss about something that’s actually possible, if not immediately probable.

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