“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Thus begins the first amendment to our nation’s constitution–drafted in 1789 and ratified two years later. The notion that in a free society, government has no business meddling in the affairs of religion or establishing a state religion seems so obvious that a First Amendment seems almost superfluous. Of course, in today’s society it is almost a given that the government has no right to tell one how to practice their religion and that the making of laws that inhibit one’s free exercise of religion it is overreaching. But the framers recognized a necessity for this amendment. For James Madison–the author of the First Amendment–ensuring that citizens had the ability to worship whomever and however they pleased, not only forbade government from ever being able to establish a national religion, but (and perhaps more importantly) guaranteed that man would be allowed “the full and equal rights of his conscience” without infringement from the government.
But what exactly constitutes a breach of the “free exercise” clause has not always been simple. Supreme Court battles have been waged over this question for decades. Most simply understood, any act by the government which impedes your ability to act in accordance with your religion—and subsequently your conscious, is a clear and undeniable breach of your right to exercise freely. On what grounds then did the Supreme Court rule in 2012, that the right to “free exercise” extended to companies as well? Answering this question requires understanding its history.
In 2012 Hobby Lobby sued then Secretary of Health and Human Services, Kathleen Sebelius on the grounds that a portion of the Patient Protection and Affordable Care Act (colloquially known as Obamacare or ACA) violated the Religious Freedom Restoration Act (RFRA) and the free exercise clause of the First Amendment. Under the ACA, employment based group health care plans had to provide certain types of preventative care including FDA approved birth control. David and Barbara Green (the owners of Hobby Lobby) argued that requiring them to provide health plans that covered contraceptives was against their religious belief and sought an injunction to prevent the tax penalty that would be levied against them were they not to provide the health plan. The first question that comes to mind of course is: why does it matter if the owner of a company is religiously opposed to the provisions of the bill? So long as the company is for profit and not a religious institution, it should provide this coverage for its employees regardless of its owners religious persuasion. That question incorrectly assumes that the violated laws in question do not recognize companies as having the same right as individuals with respect to religious freedom.
Substantial Burden
The court ruled in a 5-4 decision that Congress intended for RFRA to be read as applying to corporations, seeing as they constitute a group of individuals who are using the company to achieve a desired end. Justice Samuel Alito wrote the majority opinion in which he stated, “we reject HHS’s (Health and Human Service’s) argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships.” (It should be noted that ACA does not place the same burden or requirement upon non-profit religious organizations). Justice Alito goes on to say that RFRA clearly did not discriminate against men or women who decided to run their for profit companies in a manner required by their religious beliefs. This understanding of the law protected companies like Hobby Lobby from being subjected to abide by governmental policies that are diametrically opposed to religious practice. However another question must be explored. Mainly, did Hobby Lobby have a legitimate claim that they should be exempt from the above mentioned tax penalty?
The plaintiffs argued that along with being protected under RFRA, the penalty incurred from refusing to provide coverage placed a “substantial burden” on them which was not the least restrictive method of satisfying the government’s interest. What exactly does “substantial burden” mean? According to the RFRA, the government must make an accommodation if it places a substantial burden on a person’s ability to practice their faith. RFRA is clear however, that only in instances when the government has a compelling interest to place substantial burden on a person’s religious practice may it do so. For instance, if the religion of Nolanism required its adherents to never pay taxes, the government has a compelling enough interest (because they are given the responsibility to lay and collect taxes) to place substantial burden on Nolanists’ ability to practice their religious sacrament of tax evasion. This burden might come in the form of a fine, or perhaps a law with the wording “all citizens are required to pay taxes regardless of their religious affiliation and failure to do so results in imprisonment up to 30 days.” The court would recognize this substantial burden to be a valid one because of the government’s compelling interest. In the case of Hobby Lobby though, the court did not consider the provision of birth control access to be a compelling enough interest of the government to enforce a substantial burden on the religious practice of Hobby Lobby by fining them for not providing the coverage.
Understanding of the substantial burden the ACA placed on Hobby Lobby–and subsequently how that burden violated its right to free exercise— is essential to understanding why many conservatives are wary of government requiring institutions to provide coverage for abortion. While the court agreed that its reading of RFRA did not and could not exempt companies from providing other provisions enumerated in ACA, it sharply rejected a thinking which placed a responsibility on a company to violate its sincerely held religious beliefs.
Preserving Liberty; Pursuing Justice
It is our firm belief that individuals should not be coerced by government to provide for a service that is at odds with their religious beliefs. People should have the ability to freely practice their religion without fear of reprisal, a principle we have held as true since our nation’s inception. Furthermore it is not the responsibility of religious institutions or any private institution to provide birth control, though that is slightly beyond the scope of this issue. At the heart of the issues lies the question: should religious institutions be required to provide birth control to its employees? It is clear that so long as we give institutions (dedicated to religious adherence) the same status as people with regard to their religious practice, we can never condone any type of governmental coercion that pigeonholes people into choosing between suffering a significant burden or breaking a religious law.
Feeling free to exercise your religious beliefs, and not being penalized for doing so, is at the heart of our democracy. The ability to exercise conscience with out requital from government is essential to any civilization of free people, and it must be our cause to protect that ability and in doing so, preserve our democracy.