Are Justices Ginsburg, Breyer, Sotomayor, and Kagan generally condemning RFRA-like regimes (maybe even state ones)?

There is much that’s very interesting in both the Hobby Lobby majority and in the principal dissent; but here’s one passage that particularly struck me, from the dissent (emphasis added):

Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. [The dissent cited cases claiming religious exemptions from bans on race discrimination, marital status discrimination, sex discrimination, and sexual orientation discrimination. -EV] Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine … the plausibility of a religious claim”?

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)? According to counsel for Hobby Lobby, “each one of these cases … would have to be evaluated on its own … apply[ing] the compelling interest-least restrictive alternative test.” Not much help there for the lower courts bound by today’s decision.

The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should note understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Women’s Health Amendment.

There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” United States v. Lee (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” The Court, I fear, has ventured into a minefield, by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged … substantially in the exchange of goods or services for money beyond nominal amounts.”

These are perfectly plausible objections, and indeed they were part of Justice Stevens’ attack on the old Sherbert/Verner Free Exercise Clause regime — an attack that ultimately prevailed, with the votes of conservatives Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy, the moderate Justice White, and Justice Stevens himself, in Employment Division v. Smith. But they are hard to cabin to corporate exemption claims (individual employers can raise many of the claims that the dissent mentions), or even to exemption claims raised as to commercial activity.

Indeed, these objections seem to me applicable to nearly all sorts of exemption requests. Consider drug laws — where some religious groups’ claims prevail (see the hoasca case from the Supreme Court, Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), and some of the lower court peyote cases), and other groups’ claims fail. Consider unemployment compensation requirements, especially ones in which there aren’t substantial concerns about discrimination against religious claims (see footnote 1 of the Rehnquist dissent in Thomas v. Review Bd.). Consider religious exemptions from hunting restrictions, from traffic rules, and a wide range of other laws, as to which courts sometimes give exemptions and sometimes don’t, depending on often difficult judgments about what interests are compelling, whether less restrictive means would be sufficiently effective, and whether a particular claimant is indeed sincere. Justice Stevens, after all, didn’t limit his objection to the Sherbert/Yoder test to commercial cases such as United States v. Lee.

To be sure, much of Justice Ginsburg’s argument in the rest of her dissent is focused on specific attributes of Hobby Lobby’s exemption — the fact that it’s a corporation, the fact that it’s engaged in commerce, the Justice’s judgments about the substantiality of the burden and the adequacy of alternative means in this particular case. But the passage above strikes me as considerably broader.

Is Justice Ginsburg saying that RFRA is indeed generally unconstitutional even as to claims by individuals that don’t involve commercial activity (which would mean that similar state regimes would be as well)? Or are her and Justice Breyer’s views in this passage somehow reconcilable with their views in O Centro, her opinion (joined by Justice Breyer) in Cutter v. Wilkinson, and Justice Breyer’s seeming endorsement of the pre-Smith regime in City of Boerne?

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
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Eugene Volokh | June 30