The United States Supreme Court hears all kinds of cases. Some of them deal with interesting but arcane points of law that only the parties involved, hardcore Court watchers, legal historians and practitioners from whatever area of law is affected seem to care. These aren’t the cases with hoards of demonstrators, television cameras and reporters delivering up-to-the-minute analysis out on the steps of the Supreme Court. And as we move through our busy lives assaulted by information coming from countless sources and outlets, it can be difficult to muster enough enthusiasm to learn about what the highest court in the land and the final arbiter of the constitutionality of government actions has on its calendar. But sometimes the stakes in a case are so high for every single one of us, that we must tune in and pay attention.
On March 25, the Supreme Court will consider the extraordinary proposition that a corporation or for-profit business enterprise can have and act on religious beliefs simply because their owners subscribe to those beliefs. A group of corporations including Hobby Lobby, a corporation with over 500 retail stores throughout the United States and more than 13,000 employees, and Conestoga Woodworking which has over 1,000 people working for it, contends that the Affordable Care Act’s requirement that employee health insurance plans cover contraception violates the corporations’ right to religious freedom. To understand how we got to the point where a business can make the remarkable claim that it can have a religious consciousness which excuses it from obeying laws, a short history lesson is in order.
Once upon a time in the late 1980s, two Native American men were fired from their jobs as counselors at a drug rehabilitation center in Oregon, because they had ingested peyote, a hallucinogen, as part of a church ritual. When they applied for unemployment benefits, the state denied their claims based upon the fact that they had been let go for work-related misconduct. They sued, claiming a violation of their free exercise rights under the First Amendment. Ultimately, the U.S. Supreme Court ruled that the state was within its rights to deny the plaintiffs unemployment benefits because all peyote use, regardless of whether it was being used for sacramental purposes, fell within the state’s controlled substance law. Oregon’s controlled substance and unemployment benefits laws applied to everyone. Because anyone who took peyote and was fired for work-related misconduct would be denied benefits, the Court held that Oregon’s actions did not violate the plaintiffs’ First Amendment rights. In reaching this conclusion, the Court departed from a long-established legal test to be applied in free exercise cases. That test had previously required that laws which pose a substantial burden on religious beliefs must be based upon the highest level of legal scrutiny, known as a compelling governmental interest. In other words, the government had to show that it had an incredibly good reason for passing and enforcing a law that might interfere with someone’s practice of their religion. Now, an increasingly conservative Supreme Court was carving out a massive exception, deciding that religious belief did not give people “an extraordinary right to ignore generally applicable laws” even if those laws are not supported by a compelling governmental interest.
Civil rights organizations and religious leaders panicked. Could the government really trample on people’s religious beliefs without substantial reasons for doing so? In response to the Court’s decision in the Oregon peyote/free exercise case, Congress enacted the Religious Freedom Restoration Act (RFRA) of 1993 which reinstated the old test. The government would once again be required to have an extremely good reason for enforcing a law that restricted an individual’s religious freedom. It passed the House unanimously, the Senate by a vote of 97-3, and President Clinton signed it into law. For the broad coalition of lawmakers and policy experts that promoted, drafted and passed the RFRA, it was a reasonable, necessary response to the Court’s Oregon decision. Or so it seemed at the time.
Last month a national furor erupted over a proposed law (SB 1062) that would have allowed for-profit business owners in Arizona to refuse service to LGBT customers (or anyone they suspected of being an LGBT customer) on religious grounds. The bill’s sponsors defended the legislation as protecting the religious freedom of business owners. It was the Grand Canyon State’s own version of the Religious Freedom Restoration Act. An unexpected mix of allies who were alarmed at the prospect of legalized discrimination came together in opposition to the bill. Everyone from civil rights advocates to large corporations to small business owners to politicians from both sides of the aisle (including three who had voted for the bill, but came to see the error of their ways) pressed Governor Jan Brewer to veto the ill-conceived legislation that violated widely-held notions of equality and decency, and signaled a longing for the good old days of segregated lunch counters. To the relief of many, economic considerations carried the day. The NFL raised the specter of pulling the Super Bowl from Arizona for a second time (It had been done before when Arizona chose not to observe Dr. King’s birthday as a holiday). Major corporations like Apple didn’t like it, and the sudden realization that the LGBT community spends money too allowed sanity to prevail. SB 1062 could have cost the state billions of dollars. Fundamentalism might make for good politics in Arizona, but there are limits when there’s money to be made. And Arizona’s legislature is not alone in wanting to give its businesses legal cover for discrimination under guise of religion. Mississippi is considering its own version of the RFRA. While Governor Brewer’s veto brought Arizona back from the brink, the nation is poised at the edge of a much higher precipice.
Which brings us to the Hobby Lobby cases. If the Supreme Court decides that corporations are entitled to religious freedom under the RFRA, say hello to the brave new world of businesses using religion to avoid complying with laws they find problematic. How about corporations run by Orthodox Jews or ultra-conservative Muslims refusing to employ or engage in any commercial activity with women? Religious fundamentalists could refuse to hire non-believers, “heretics”, “infidels”, or the “unclean”. Throughout history, certain religions have viewed the mentally ill as possessed by evil forces. Modern proponents of such positions might classify autistic and developmentally disabled persons among the possessed, and could claim a religious right to deny insurance to, or do business with, individuals controlled by demons. Cancer treatments might also be excluded from health plans offered by employers with a radical, but sincerely held religious belief that you cannot kill anything including living cancer cells. With the floodgates open to declarations of religious belief by commercial entities seeking exemptions from laws, courts will constantly have to evaluate belief systems in order to decide which religious freedom claims have merit. In the United States, we frown upon having to choose which religions are more valid than others which is why it’s illegal under the Establishment Clause of the First Amendment.
Here’s the thing. The Free Exercise Clause and its statutory sidekick, the Religious Freedom Restoration Act, are intended to protect individuals from government action that unduly burdens deeply held, personal matters of conscience, principle and belief derived from religious traditions. By their very nature, corporations and businesses are not and can never be individuals with free exercise rights. But if the Court holds otherwise against the full measure of our country’s history and judicial precedent, it would make a mockery of what the Free Exercise Clause was created to defend. The Court could find that the RFRA can excuse a business from operating within the confines of a law, including the Constitution itself. We could all face the specter of unequal pay, invasion of privacy, discrimination based on gender, sexual orientation, ethnicity or any other type of discrimination you can imagine, if religious freedom rights are elevated above other liberties even while they are debased by extending them to organizations the Free Exercise Clause was never meant to cover. Can the Court hold that government cannot violate individual rights under the First Amendment, but corporations can? For Hobby Lobby and its cohorts the answer is yes. To paraphrase a famous remark: If a non-religious, for-profit business claims religion as a justification for its actions, then nothing is illegal. And that means everyone’s civil rights are in peril.