December 12 2017

Religious Liberty in the US: Coming to Terms with Hobby Lobby, RFRA, and RLUIPA

by Barbara A. McGraw, Saint Mary's College of California

photo taken at a Washington, DC protest during the Supreme Court's hearing of Burwell v. Hobby Lobby (2014). A protestor holds a sign, "Your morality doesn't write my prescription."

Progress over the past two decades in the United States toward greater acceptance of the rights of minority religion adherents has been profound, stemming in part from changes in attitudes, but also due to laws passed by Congress: the Religious Freedom Restoration Act of 1993 (RFRA) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Most recently, these developments were reflected in the unanimous Holt v. Hobbes (2015) decision, where the Supreme Court, applying RLUIPA, upheld the right of a Muslim inmate to wear a beard. These developments were also reflected in the Army’s decision, applying RFRA, to change its policy to allow a Sikh soldier to wear a turban modification of the Army’s uniform headwear.

Generally, these developments have been praised. Recently, however, when Christians sought the protections of such laws, many on media outlets called for the repeal of RFRA laws altogether. But the call for repeal is misplaced and reflects unfamiliarity with the historical context and the benefits of such laws in the face of that history.

From the beginning of the nation, the courts attempted to mediate between the traditional Christian hegemony, which had been imported into American jurisprudence through the English Common Law, and the new constitutional regimes of the United States and the states, which, on their face, provided broad religious liberty protections to all. However, prominent jurists interpreted religious liberty narrowly, the most influential jurist being Justice Story, who wasn’t about to countenance much in the way of religious diversity.

[Justice Story] argued in the Commentaries (and elsewhere) that the American colonies had been established on Christian (meaning Protestant) principles, and that the First Amendment was intended “not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity,” but instead “to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.”1

Generally, therefore, laws were interpreted to favor a majoritarian view of religion.  For example, in the nineteenth century, blasphemy laws protecting Christianity prevailed over claims of free speech.2

It was this worldview that won the day in the US Supreme Court’s first free exercise of religion case, Reynolds v. United States (1879). Whatever one thinks of the requested liberty right in that case—polygamy—the Supreme Court made law that applied generally, holding that religious liberty extends only so far: people may believe whatever they want, but that ends when it comes to acts that are contrary to general laws. In other words, everyone’s practices must be in compliance with general laws, even if those practices violate one’s religion. Apparently, the Court did not recognize that the general laws of the day were in large part based on the prevailing Christian (Protestant) worldview. Thus, in that cultural milieu, traditional Christians would be unlikely to need an exemption from laws that infringed on their religious liberty rights.

That prevailing worldview was reflected in other areas as well, including even assumptions about what counts as “religion.” For example, the practice of Native American spiritualities was circumscribed and even restricted altogether in some circumstances through much of American history. It was not until 1978 that an act of congress, the American Indian Religious Freedom Act, provided religious liberty protections to Native Americans.3

During the mid-twentieth century, however, the Supreme Court began to allow some exceptions to general laws to accommodate the liberty of religious minorities. In Sherbert v. Verner (1963), the Court adopted what became known as the “strict scrutiny” or “compelling interest” test for addressing whether religious acts that conflict with general laws ought to be given an exception from the law. The strict scrutiny test requires that when a general law substantially burdens a religious exercise, the government must have a compelling interest that justifies restricting that exercise. Moreover, even when there is a compelling interest, the restriction on religion must be drawn as narrowly as feasible; that is, what has become known as the “least restrictive alternative” must be applied. Still, even after Sherbert, when the strict scrutiny test was at issue, the courts tended to rule in favor of the governmental interest involved. Therefore, the dominant worldview prevailed, holding tight rein on what practices would count for the purposes of the First Amendment’s religion protections.

Then in 1990, the Supreme Court decided Employment Division v. Smith, a case involving Native Americans who argued that their religious practice was entitled to exemption from a general law that prohibited the use of peyote—peyote use being an important practice in the claimants’ Native American spirituality. Reaching back to the Reynolds case, Justice Scalia, writing for the Court’s majority, drew a hard line—no religious exemptions for acts, that is for religious practices that run counter to general laws; only belief is protected by the First Amendment.

But this time, individuals and organizations across the political and religious spectrum were alarmed. Religious liberty means nothing, it was argued, if religious practices are not protected under the First Amendment. This issue brought together a broad coalition of groups and individuals, including the American Civil Liberties Union and the Traditional Values Coalition, Native Americans and the National Association of Evangelicals, Jews and Muslims, Democrats and Republicans. With this public outcry, it was not surprising that, not long following, the US Congress acted to counter the Court’s Smith decision by nearly unanimously passing RFRA, which was signed into law by President Clinton in 1993. The effect was to reinstate the strict scrutiny test and, thereby, to undo what was seen as the damage done by the Court’s Smith case. Later, the Supreme Court struck down the application of RFRA to the states; nevertheless, the application at the federal level remained. After that, many states enacted their own RFRA laws, and in 2000, the US Congress passed RLUIPA, which applied the strict scrutiny test to all levels of government in the limited arena of institutionalized persons (e.g., prison inmates) and land use (e.g., church property).

In other words, the law of religious liberty that we know today does not stem primarily from the First Amendment, but rather from legislation that runs counter to still existing First Amendment jurisprudence. RFRA and RLUIPA have been a boon for the religious liberty of minorities over the years, especially considering the courts usual practice of failing to apply the law of equal protection in the religious rights context. Since the passage of these laws, the government has been required to accommodate the religious liberties of many, often well beyond the general public’s understanding of America’s vast religious diversity, particularly as found in prisons.

It is in this context that in 2014 the US Supreme Court ruled in Burwell v. Hobby Lobby that a religious exemption is warranted under RFRA for a closely held corporation. The decision went “viral” on the Internet, as commentators expressed alarm that “corporations are people.”  But what is more salient about the Hobby Lobby case for our purposes—the public understanding of religion—is the rest of the ruling. It involved Christians who were seeking a religious exemption from certain aspects of a general law—the Affordable Care Act (ACA). While many a protest could be heard asserting that there should not be an exemption to the ACA’s provisions, others thought that the Hobby Lobby ruling bode well for religious minorities, especially as the Holt v. Hobbes case, involving a Muslim inmate’s requested religious exemption, was coming before the Supreme Court shortly thereafter.

Still more controversy was on the horizon in the spring of 2015, however, when Indiana adopted a RFRA law. Those protesting Indiana’s version of RFRA called into question some specific language that differed from the federal RFRA law, but the overall thrust of the law was the same—religious exemptions from general laws. Many on the Right had planned to use the Indiana version of the law to make discrimination against the LGBT community a religious liberty right, after the US Supreme Court upheld the right to same-sex marriage in Obergefell v. Hodges (2015).

In the aftermath of Hobby Lobby and Indiana’s foray into RFRA, there has been a clamor in some quarters to repeal both federal and state RFRA laws, now viewed by some of those who once supported such laws as permitting the reassertion of the worldview that had in the past limited the rights of others. What needs to be understood, however, is that repeal is highly likely to cause more harm than good, as repeal would undermine progress toward the tolerance of, and even respect for, minority religion rights.

Rather, embedded in RFRA and RLUIPA laws is a limitation, which balances religious liberty and other rights and interests: the strict scrutiny test, discussed above. In the Hobby Lobby case, for example, the Court did not rule that Hobby Lobby has an unfettered right to a religious liberty exemption from the ACA. Instead, the Court ruled that the government did not apply its “compelling interest” as narrowly as feasible. That is, the government can still restrict Hobby Lobby’s religious exercise in order to serve the compelling interest of the ACA, but it has to find the “least restrictive alternative” for doing so. Other conflicting rights ought to be balanced similarly. That is, a strong argument can be made that the appropriate remedy for the conflict between certain religious liberty rights and LGBT equal rights is not repeal of RFRA (or RLUIPA) laws, but to enact laws that protect the LGBT community from discrimination as a compelling governmental interest.

Of course, many complex issues remain that cannot be addressed in this brief article: When are religious exemptions from general laws warranted? How should religious liberty be weighed against other rights? Should there be a clearly defined boundary around “religion” for the purposes of the law? Is religious pluralism served or impeded when the boundaries are porous? And how can we preserve the religious rights and rights of conscience of everyone with mutual respect in the face of conflicting values?

These are important questions for our time, and the answers will say a lot about American identity now and for the future.

Please join us for a session on these issues: “Religious Liberty, the Supreme Court, RFRA and RLUIPA" (#A22-106), Sunday, November 22nd, 9:00–11:30 am.

 

Notes

1 See Eric Michael Mazur, “Religion and the Nineteenth-Century Supreme Court, 1811–1878.” In The Wiley-Blackwell Companion to Religion and Politics in the U.S. Barbara A. McGraw, ed. (forthcoming 2016).

2 See, e.g., Updegraph v. Commonwealth, 11 Serg. & Rawle 394 Pa. 1824. http://press-pubs.uchicago.edu/founders/documents/amendI_speechs30.html Accessed November 16, 2015.

3 See Barbara Alice Mann, “Ending the Ban on Indigenous Spiritualities.” In The Wiley-Blackwell Companion to Religion and Politics in the U.S. Barbara A. McGraw, ed. (forthcoming 2016).


headshot photo of Barbara A. McGraw, JD, PhDBarbara A. McGraw, JD, PhD, is the director of the Center for Engaged Religious Pluralism and professor, Social Ethics, Law, and Public Life at Saint Mary’s College of California. She is a member of the AAR's Committee on the Public Understanding of Religion.