RFRA: The Original Sin

By JC

By now, many folks who have paid attention to the current onslaught of Supreme Court rulings are enraged that the SCOTUS chose to uphold corporate “rights” against things like mandating certain forms of birth control. Of course, most liberal and moderate indignation over the Court’s decision doesn’t seem to include the origins of RFRA, the law that the decision is based on.

As reported in the local news rag:

In a 5-4 decision authored by Justice Samuel Alito, the high court ruled that family-owned for-profit corporations are protected by the Religious Freedom Restoration Act, and as such, do not have to abide by an Affordable Care Act provision that conflicts with business owners’ religious beliefs: “The contraceptive mandate, as applied to closely held corporations, violates RFRA.”

So sure, we discover that the Religious Freedom Restoration Act is the bedrock of the Court’s decision. Well, where did the RFRA come from? Seems that liberals and democrats have nobody to blame but themselves. Via the Volokh’s Conspiracy’s Sasha Volokh:

It’s true that RFRA passed unanimously in the House and nearly unanimously in the Senate — in 1993, when Congress was controlled by Democrats — and was signed by Bill Clinton, and everyone now on the Court seems to accept the constitutionality of RFRA… Justice Stevens is the only one who ever showed any sympathy for the argument that RFRA violates the Establishment Clause, in his concurrence in City of Boerne v. Flores. Nonetheless, Justice Stevens may have been right as a philosophical matter…

In their zeal to prostrate themselves in front of the growing evangelical movements, and to not be seen as anti-religious, democrats saw fit to plant their seeds in a law that now will be used to justify many further religious exemptions. Back to the Missoulian article:

Rep. David “Doc” Moore said it’s hard to understand all the ramifications of a ruling on the first day it’s issued. However… Moore said the Affordable Care Act was poorly written, and the Supreme Court’s ruling illustrates the weakness of the legislation. The decision raises many questions about the overall effectiveness of the law, as well as questions about other exclusions companies can receive.

“If they can exclude birth control, or contraception, what else would a company try to exclude? Chemotherapy? Is their plan going to be so gutted because they can find some objection to it spiritually that life-saving treatment will not be covered?” Moore said.

And of course, other republican politicians are lauding this ruling:

In a statement, Montana Attorney General Tim Fox said he and 19 other state attorneys general filed a “friend of the court” brief in the case, and he lauded the decision “that President Obama’s Patient Protection and Affordable Care Act (Obamacare) violates the religious freedoms of America’s family owned businesses.”

“Today’s ruling by the U.S. Supreme Court in the Hobby Lobby case upholds Americans’ religious liberties,” Fox said. “Two years ago, the U.S. Supreme Court struck down the mandatory Medicaid-expansion provisions of Obamacare, and today, the Supreme Court struck down those offensive provisions of Obamacare that violate the First Amendment religious freedoms of America’s family business owners.”

So, given that the SCOTUS has upheld the First Amendment religious freedoms of corporations, what will be the next shoe to drop? Now that the SCOTUS has ruled that federal regulations are at odds with many religious “freedoms,” it is just a matter of time till the courts are overrun with corporate attempts to use religion to justify an exemption from regulation. It is a sweeping decision that encompasses far more that just contraception, as Jonathan Turley nicely describes:

The [Hobby Lobby] decision has sweeping application – well beyond these companies or the 49 for-profit corporations that have claimed such exemptions. The ruling addresses the very essence of a religious claim and the very essence of a corporate entity.

Closely-held corporations are not as limited as it might seem. I agree with [Justice] Ginsberg that the implications are sweeping. The closely-held corporations represent a huge number of businesses. As I mentioned on CNN, the large corporations are the least likely to demand such exemptions. There are millions of family businesses that may not object not just to the ACA but renew objections to discrimination laws that force such businesses to serve same-sex weddings or engage in other activities that violate their religious beliefs. This is much like Heller and the recognition of individual gun rights. We are still working out the details on how far that goes years after the decision.

Thanks Democrats, for bring us RFRA, the “Original Sin.” And stay tuned. This case will reverberate for decades.

If you want to read about the nature of The Original Sin, Volokh brother Eugene does a good job of describing it:

Some people have argued that the Religious Freedom Restoration Act shouldn’t have applied in Hobby Lobby because the employer mandate doesn’t require employers to actually do anything they see as sinful. The employers aren’t required to use the implantation-preventing contraceptives that they see as immoral. They aren’t required to administer or even handle them. They are just required to provide insurance policies that their employees may then choose to use to buy those contraceptives. Is that a real burden on belief?

That question would be answered “no” if a RFRA claim is brought by an employer who thinks the only relevant sin is actually using the implantation-preventing contraceptives. If the employer is called to the stand and asked, “Do you think that it is religiously wrong for you to provide this insurance?” and the employer says, “no, that’s fine, only using the contraceptives is sinful,” then the employer has admitted that the employer mandate does not impose a substantial burden on his beliefs.

But, unsurprisingly, many people believe that, when some behavior is wrong, many sorts of complicity with that behavior are wrong, too. Many secular people believe this. The law takes this view, in all sorts of contexts. Religious people believe it, too.

If it is a sin (or complicit with a sin–however far you want to try and stretch complicity), then no federal regulation can compel your company to do it, under Hobby Lobby. It’s that simple, and what is considered “sin” will be about as creative as the crazy embodied in today’s ultra-religious crusades. Brothers Volokh, while being conservative constitutional lawyers, have a good handle on where this is going. And Jonathan Turley always brings a great libertarian bent to these sorts of constitutional issues, writing to great effect on the nature of the Obama imperial presidency.

Democrats on the other hand, just prefer to demonize 5 men on the Supreme Court, as if they themselves had nothing to do with this outcome (well, Baucus voted for Roberts, but I digress, Roberts already paid Baucus back with his vote in favor of the ACA mandate). And what we will witness from dems and liberals, is nothing more than a huge outpouring of ineffectual, and misplaced indignity. Little do they see how their simple pandering to the religious right in passing RFRA in 1993 will have a long-standing, and monumental fallout on american society.


  1. steve kelly

    Will Taliban flock to U.S. to practice their religion? Or a resurgence of “not-for-profit” Pilgrims rounding up and burning witches perhaps. Elizabeth Claire Profit (1939-2009)where are you when we really need you.

    • JC

      When the Caliph demands that waitresses at the Halal restaurants in downtown Manhattan (New York, not Montana — though who knows what the reformed christians might require their waitresses to wear there) wear burkas, we’ll know that even sharia law will be protected by RFRA.

      Maybe we need to start a new church? The reformed democratic anarchist pagan assemblage for wilderness?

      • To late. It already exists, you just don’t call your religion a church or faith. The judges ruling only insures that all religions are treated equally. The “Original Sin” was the U.S. Constitution, not a law based on our inalienable right to the freedom of religion. Freedom of religion is not something we practice in the confines of a church, but in our daily lives.

        The issue of Hobby Lobby was obedience to divinity vs. the life ending “healthcare” mandates imposed by bureaucrats.

        Jesus said,”“So it is not the will of my Father who is in heaven that one of these little ones should perish.”
        (Matthew 18:14 ESV)

        • lizard19

          so why does Hobby Lobby see no problem with investing in companies that make the contraceptive options they deny their employees?

          • Sure, they are bound to be inconsistent and hypocritical like the rest of us (including you and I). But what does that have to do with the particular facts of the case?

            • lizard19

              um, it undermines the position of Hobby Lobby, and makes it look like their position is more about money than religion. they don’t want to pay for insurance that covers contraception, but when they are MAKING MONEY from companies that MAKE contraception, they don’t have a problem with it.

              there are moral components to what institutions invest in, which is why the Presbyterian church divested from companies that support the apartheid state Israel.

              • To participate in an investment, and commerce is not equivalent to being cohered by government policy (not law!) to pay for the termination of a human life. Not the same at all.

              • lizard19

                oh, so it’s all about choice…for the company. but the choice of the employee? not so much.

        • JC

          No, Rev, the issue of Hobby Lobby was not “obedience to divinity vs. the life ending “healthcare” mandates imposed by bureaucrats”. You might make it such in your view, but what the Court did was to open up a new form of challenge to federal regulation. And by extension, any religion can be formed to make it a sin to do anything the practioner wants to do that is at odds with federal regulation.

          To make matters worse, the rights of the person have been extended to be rights of the corporation, and hence once can create corporations built on religious principles for the sole purpose of subverting federal regulation.

          This decision by the SCOTUS is not about contraception. It is about creating precedence that will challenge the federal government’s ability to regulate business.

          Don’t mistake my snarky statement you were replying to as refering to anything in particular, as such a beast as the “reformed democratic anarchist pagan assemblage for wilderness” religion does not exist.

          But I might ask you what you think about a Halal restaurant in NY requiring its waitresses to wear burkas under Sharia law?

          Do you think Muslims have the same rights to demand exemption from regulations as christian religions?

          And finally, do you really consider the U.S. Constitution to be sinful? Do you believe in the separation of church and state? Or do you really believe that we need the christian version of a caliphate to unite the christian world against the mauradings of barbarians?

          • You obviously don’t understand that separation of church and state goes both directions.

            I don’t consider our constitution sinful, nor is it perfect, but when you refer to RFRA as “Original sin”, and the RFRA is a constitutional law to protect people to be free to practice their religion, then because it is based on the 1st Amendment, you are inferring that our constitution as being the “original sin”.

            I certainly do not believe that we “need the christian version of the caliphate to unite the ……etc.” That would be in violation of religious freedom. As far as a restaurant requiring waitresses to wear burkas, I’m OK with that. I wouldn’t work there, and I probably wouldn’t dine their. They would probably go out of business pretty quickly. A business model like “Hooters” seems to be the way to success these days.

            I’m all for intrusive, overbearing government regulation being thwarted. It is ridiculous for a mandate (not even a duly passed law!) to require someone to pay for someone else’s termination of a human life. Hobby Lobby provides lots of other options for appropriate birth control. They didn’t forbid their employees from using the morning after abortion pill, but they just didn’t want to be complicit in a possible death by pay for it. I think these dangerous pills are available over the counter for less than $40! This whole case was ridiculous, and the supreme court has ruled on it, and the mandate (not the law!) is overturned. Religious freedom exists, even if you decide to own a family business.

  2. Big Swede

    The Hobby Lobby case emboldens the left with its shallow playbook’s lone strategy, “The War on Women”.




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