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Symposium: Accommodations, religious freedom, and the Hobby Lobby case

The following contribution to our contraceptive mandate symposium comes from Richard Garnett, professor of law at Notre Dame Law School.

Every law student learns and every lawyer knows that there is more to “doing law” than simply looking up or even arguing for the right answers.  It also involves identifying the questions that need answering.  This is one reason why law-school examinations so often ask students to “spot the issues” that are presented, or hidden, in complicated and sometimes bizarre hypotheticals, stories, and narratives.

It’s a basic point, but still true:  The “issues” that we see and the questions we identify in a particular controversy can depend on the way we frame it, on the premises we bring to it, and on the philosophical or experiential “lens” through which we view it.  The same set of facts can be arranged by different analysts and commentators into very different stories that, in turn, tee up different problems for solving.  The Hobby Lobby and Conestoga Wood cases, and the debates surrounding them, are (among other things) confirming examples.

Some people frame and “see” these cases as occasions to engage interesting theoretical questions about the nature of corporations and their relationships to their owners, managers, and employees.  To others, they provide an arena for wrestling with complicated moral and ethical principles involving complicity in and cooperation with others’ wrongdoing.  Still others are moved to dive deep into anthropological or theological waters and to figure out what “religion” really is, whether it is categorically different and sharply separate from business and economics, and if it is something that can be practiced or exercised by groups, associations, and institutions or instead only by individuals.

And, of course, some insist on viewing the cases through a political lens or in a partisan frame.  To them, Hobby Lobby’s legal claims are moves in a larger “war” on women and their interests and against access to important forms of health care.  On this view, arguments about the preventive-services mandate and legal protections for religious freedom evoke and echo stupid statements by senatorial candidates and attacks on law students by loud-mouthed talk-radio hosts.  Linda Greenhouse’s recent opinion piece in The New York Times provides an illustration.   She contends that the religious-liberty challenges to the mandate are connected to a general “sustained aggressiveness by religious groups” and to a “deadly serious and sophisticated campaign” by “the church” and (improbable) “school-yard bull[ies]” like the Little Sisters of the Poor.  Her tendentious account is a reminder that the lenses we use can distort as well as clarify.

In any event, here is another – a simpler, less dramatic, and, I think, better – way to “see” the Hobby Lobby and Conestoga Wood cases and the questions they present to the Supreme Court:  The cases are not about metaphysics or morality and they are not sneaky steps toward theocracy.  They are, instead, unremarkable invitations to a federal court to do what courts so often and unremarkably do – that is, interpret and apply a duly enacted statute.

The claimants in these cases are invoking the Religious Freedom Restoration Act, which was passed almost unanimously by Congress, enjoyed deep and bipartisan support among legislators, activists, and experts, and was signed into law by President Clinton.  They are doing exactly what the Act’s refreshingly united supporters expected and wanted claimants to do, namely, asking a federal court to decide whether certain regulations unnecessarily and therefore unjustifiably “substantially burden a person’s exercise of religion.”  There is nothing dramatic or strange; nothing theoretical or theological; and certainly nothing bellicose or “bullying” about this request.

Most SCOTUSblog readers are already familiar with the Act, or “RFRA,” but a few parts of the story are worth recalling.  In Employment Division v. Smith, the Court held that the Free Exercise Clause of the First Amendment does not require or authorize judicially created exceptions from generally applicable, nondiscriminatory laws, even when those laws have the effect of burdening some people’s religious or religiously motivated practices.  As Justice Scalia put it, “an individual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

This interpretation of the Free Exercise Clause was and remains controversial and contested.  (I am one of the relatively few church-state scholars who believe it was probably right.)  What is sometimes forgotten or overlooked, though, is the very important fact that the Smith Court did not say that there is anything wrong with or suspect about special accommodations for religious believers whose exercise of religion is affected by general laws.  The Court’s objection was to second-guessing by judges of the balancing of interests that most legislation involves; it was to judge-made carve-outs and exceptions and not – at all – to generous accommodation by legislators, public officials, and the citizens they represent.  Religion-respecting exemptions are (usually) not constitutionally required, but they are nevertheless (usually) worthy, welcome, and constitutional.

So, by enacting RFRA, Congress and the president responded to the Court’s invitation and specifically invited – indeed, required – what the Justices (without dissent) called in Gonzales v. O Centro Espirita Beneficente Uniao De Vegetal  “case-by-case consideration of religious exemptions to generally applicable rules.”  As I discuss in more detail here, the Justices in the O Centro case took this response seriously.

By enacting RFRA, Congress – again, nearly unanimously – acknowledged that “free exercise of religion” is an “unalienable right” and that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.”  The national government imposed on itself and its activities – that is, “We the People” embraced for us and our national community – a commitment to religious liberty that supplements the floor set by the First Amendment.  In response to the concerns expressed by the Court in Smith about inappropriate and intrusive judicial second-guessing of policy choices, Congress said, in effect:  “We think religious liberty is important, that accommodations often make sense, and that exemptions are sometimes warranted.  We want the courts to be available, on a case-by-case basis, to check our work, give our cost-benefit analysis a second look, and make sure we don’t unintentionally but unnecessarily burden religious exercise.”

And so, the various parties – from Hobby Lobby Stores to the University of Notre Dame to the Little Sisters of the Poor – who are invoking RFRA in response to the preventive-services mandate are not (in one commentator’s unhelpful words) “religionites” seeking to curtail access to legal contraception, secure unfair advantage over competitors, hamstring the Affordable Care Act, or re-conceptualize corporate law.  They are simply reminding Congress, the Court, and all of us of the commitment we already (and resoundingly) made to give even legislation and regulations that we think are well-meaning and wise a close and careful second look, in a judicial setting and away from the rough-and-tumble of politics, when it turns out that they could needlessly and avoidably complicate or constrain the exercise of religion.  And, of course, Congress and the president can respond to whatever results from the Court’s second look as they see fit.  (It’s hardly the case that the details of implementation of the Affordable Care Act are set in stone.)

Now, I realize that this approach to the cases does not address some of the particular, technical questions that the Court will need to answer, such as whether the term “person” in the Act includes a for-profit business corporation.  (I think that it does, although this does not mean that claimants’ for-profit or corporate status is irrelevant to the merits of their claims.)  There’s a lot more that can be said (indeed, I’ve said a lot more, here and here) about the controversy.  Still, I think it makes sense to set aside potentially distorting lenses, to change our frame, and to ask, “Given the commitment reflected in RFRA, and assuming that we can, why shouldn’t we accommodate Hobby Lobby (or the University of Notre Dame, or the Little Sisters of the Poor)?”

We need not and should not say, it seems to me, that Hobby Lobby should lose simply because it is a corporation or merely because it is a business.  Lots of churches are incorporated and many people believe that their religious faith animates and informs their work no less than their worship.  Many agree, in other words, with the First Lady that one’s “faith journey isn’t just about showing up on Sunday for a good sermon and good music and a good meal.  It’s about what we do Monday through Saturday as well[.]”  Many of us strive to integrate rather than to segment and compartmentalize our lives, and there does not seem to be any good reason to draw in law a bright line separating religious practice and business.

Here is another way to ask the “why not?” question:  We have decided (or, at least, those who promulgated the relevant regulations have decided) that certain preventive services should be available to all women without cost-sharing.  We know that some employers – not many, but some; mostly religiously affiliated, but not all – have religion-based objections to providing coverage that includes some of these services to their employees.   Is there any good reason not to revise or implement the regulations in such a way that employees would receive the services in question via a mechanism or route that avoids the objection and accommodates the objectors?

Perhaps no such alternative route – one that delivers the services without additional inconvenience or cost to the beneficiaries – is feasible.  That is, in RFRA’s terms, maybe the mandate in its current form really is the “least restrictive means” of “furthering [a] compelling governmental interest.”  I doubt that it is.  So, again:  why shouldn’t a court say as much?

Or maybe we think that accommodating employers who object for religious reasons to the mandate would undermine important public commitments or shared values or that accommodations would “express” something (an endorsement of patriarchal or outdated views regarding sexuality, perhaps) that we don’t want the government to express.  If we see the objecting employers as aligned with interests and aims that we find repugnant, we naturally will be hesitant about accommodating them.  In my view, though, we should not see them and their commitments this way.  Instead, we should accept ungrudgingly the persistence of reasonable disagreements about sexuality, abortion, and the drugs in question.

Finally, if it would be an unconstitutional “establishment” of religion to extend an accommodation to Hobby Lobby and similar employers, that would be a very good reason not to extend one.  A number of prominent scholars – including friends and colleagues of mine whose work I admire – have argued that it would. Another group of legal scholars (including me) have responded and explained why it would not.  This is not the place to rehearse the argument – check out this post at Balkinization and this one at the Volokh Conspiracy for a good introduction.  In a nutshell, the argument that an accommodation in this and similar cases would be unconstitutional depends on a misreading of the relevant Supreme Court precedents and a failure to appreciate the nature of the inquiry that RFRA requires.  The point of the Establishment Clause is to protect religious freedom by confirming the distinction between religious and political authority, not by limiting the government’s ability to dial back or modify its own regulations when doing so would relieve a state-imposed burden on religious exercise.

The Religious Freedom Restoration Act does not reflect a mistaken or naïve view that religiously motivated conduct is always praiseworthy or that religious actors always prioritize the common good.  Sometimes, generally applicable laws need to remain generally applicable.  Sometimes, fair and practicable accommodations are not possible.  Sometimes, parties invoking RFRA will and should lose.  But, sometimes they should win – whether they are institutions or individuals and whether they are engaged in worship, social service, or art-supplies sales. The Act says, for all of us, that religious freedom matters, that it matters to policy winners and losers alike, and that if we can accommodate religious believers’ practices and objections, then we should.

Recommended Citation: Richard Garnett, Symposium: Accommodations, religious freedom, and the Hobby Lobby case, SCOTUSblog (Feb. 28, 2014, 2:11 PM),