Senate Democrats this week unveiled their response to the Supreme Court’s Hobby Lobby ruling: A bill that would require corporations, whether owned by religious people or not, to provide health insurance that covers all approved forms of contraception. Judging by their rhetoric, Democrats will use the bill, which probably won’t pass either house of Congress, as an opportunity to rail further against the “war on women” this election year.
That might be politically useful, but the bill is unsatisfactorily narrow. The Hobby Lobby ruling exposed the fact that the Religious Freedom Restoration Act (RFRA) is a sweeping restriction on the government to act in the public interest. Following the court’s decision, it may well encourage all sorts of religious objections on issues far beyond contraception. The Democrats, then, should seek to alter RFRA, the law that led to Hobby Lobby, rather than focusing solely on public health. They can even take their cue from Antonin Scalia, who in a court decision 24 years ago warned against policies like RFRA.
The root problem is that RFRA, which judges are obligated to apply, makes it extremely hard for any generally applied rule to pass judicial review — whether that law is about guaranteeing access to contraception, combating various types of workplace discrimination or something else entirely — as long as someone claims to have a religious objection. Congress intended this. Lawmakers passed RFRA in response to a 1990 Supreme Court decision finding that religiously “neutral laws of general application” should be presumed valid in the face of religious objections. Applying a tougher standard of review, Scalia wrote for the court, would result in “religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”
Congress apparently did not find that prospect so alarming. RFRA, passed in 1993, requires federal laws that “substantially burden” any person’s religious practice to survive a harrowing judicial review of the sort Scalia warned against. In Hobby Lobby, the court last month ruled that corporations could make claims under RFRA, and that Obamacare’s contraception mandate could not pass RFRA’s stringent review. Indeed, few laws can when judges apply RFRA aggressively.
The comprehensive response to Hobby Lobby, then, is to change RFRA, resetting a legal balance that now heavily favors religious objectors at the expense of applying laws equally to all Americans. Congress could make clear that for-profit corporations cannot claim RFRA exemptions to generally applicable laws of any kind, and it could lower the standard of review it demands of generally applicable laws facing religious objections. If lawmakers want to keep some broad protection for religious objectors, there are intermediate levels of scrutiny they can require judges to apply when laws are challenged. They could establish that the government has broad but hardly unlimited capability to further important social goals in careful and reasonable ways. Then, if they want to build special religious exceptions into particular policies, they can do so case by case.
The federal RFRA is only one of many such laws that need to be amended. Numerous states have RFRA-like laws that also need reform. And those considering state-level RFRAs should hold off.
In 1990, Scalia wrote, “Precisely because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference,’ and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order” (Scalia’s emphasis).
The nation’s leaders ignored Scalia then. They shouldn’t now.