At the end of his opinion on Obamacare’s contraception mandate, Justice Samuel A. Alito Jr. essentially argued, “don’t blame me, blame Congress.” He has a point.
The majority in Burwell v. Hobby Lobby sided with several companies that wanted an exemption from the requirement that they provide their workers contraception without a co-pay. The ruling was not based on the Constitution, which does not require religious exemptions from neutral laws of general applicability. Rather, the justices looked to the Religious Freedom Restoration Act (RFRA). This 1993 law erected very high barriers to the government regulating anything that conflicts with anyone’s religious beliefs, even when that action is not targeted at any faith and applies to everyone.
“The wisdom of Congress’s judgment on this matter is not our concern,” Alito wrote. “Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”
Alito is right: Congress was the branch of government firstly responsible for shifting the balance in the law much too far to the side of religious concerns, purposely hobbling the government from pursuing a range of neutral, objective common goods, including those in public health. The contraception mandate would have survived constitutional review. It was RFRA, a law through which politicians purposely handcuffed themselves, that made the difference in the Hobby Lobby case.
It’s true that Alito’s ruling was an aggressive interpretation of RFRA. The court hardly had to accept the argument that corporations are “persons” capable of religious practice under the law. But that’s partially Congress’s fault, too. Lawmakers did not specify in RFRA whether they believed it possible for corporations to practice religion, nor whether they intended to protect whatever those practices might be. Congress built the door. Justice Alito walked through it.
The result is a ruling exposing the true dangers of RFRA, a legal regime many state governments have imposed on themselves, too. Alito attempted to head off speculation that the Hobby Lobby decision would put other desirable policies in jeopardy, such as immunization coverage requirements. But his assurances were mild and seemingly arbitrary, amounting to little more than the justices asking the public to trust them, because they really just wanted to get rid of this particular policy. Alito showed that, in the hands of a judge determined to apply it boldly, the language in RFRA is so strong that it endangers all sorts of general laws on public health, anti-discrimination and other areas requiring government policies to be applied broadly. Congress shouldn’t give judges any more opportunity. It should narrow or remove RFRA.