Prior to 1990, the standard for Free Exercise claims, known generally as the “compelling interest test” (also known as the Sherbert-Yoder test from the cases that set the precedent), was much more deferent to the religious rights of individuals. This test required that substantial governmental abridgement of an individual’s right to freely exercise their religion follow two guidelines: (1) It must be in furtherance of a compelling governmental interest, and (2) it must be the least restrictive means of furthering that compelling governmental interest.
In 1990, the Supreme Court decided the case of Employment Division, Department of Human Resources of Oregon v. Smith. The issue at hand was whether Oregon violated Smith’s right to free exercise of religion by denying them unemployment benefits after having been fired for having tested positive for peyote consumption. What made this a free exercise case was the fact that Smith was Native American and use of peyote was “central” to their religious beliefs. Justice Scalia delivered the opinion of the Court noting “to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required…Because respondents ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of the drug.” This “general applicability test” (government may place a substantial burden on the free exercise of religion if that burden results from a neutral rule of general applicability) became the standard to which Free Exercise claims would have to stand muster.
The shift in Court policy toward deferment to government interests presented in Smith outraged many religious rights groups. Almost immediately, lobbyists began pressing Congress for a law to effectively overturn the Supreme Court’s decision. The result was the Religious Freedom Restoration Act of 1993 (RFRA). The text of the law reads as follows:
(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) Judicial relief
A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
The striking similarity to the well-described “compelling interest test” indicated the direct objection of Congress to the Supreme Court’s ruling and holding in Smith. However, in codifying a more fluid Court interpretation into law potentially opened the door for religious entities to subvert rules of general applicability in almost every case.
In 1997 the same Court was now faced with deciding the constitutionality of the RFRA when they heard City of Boerne v. Flores. In this case, the Court found itself defending its decision in Smith saying, “The application of the Sherbert Test, the Smith decision explained, would have produced an anomaly in the law, a constitutional right to ignore neutral laws of general applicability.” From there the Court came out on the offense in their conclusion saying, “RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. The judgment … sustaining the Act’s constitutionality is reversed.”
A key nuance not explicit here is that the parties Boerne were an individual and a municipality in disagreement over the obligations dictated by a federal law. The Bill of Rights first applied only to the federal government and not to states and municipalities. It was only through more than a century of incorporation cases that these now fundamental rights are applicable to states and localities. Yet in the case of RFRA’s unconstitutionality through the Boerne case, the Supreme Court narrowly worded its ruling to strike down RFRA only as it applied to Congress placing demands on the states. If it unconstitutional for the federal to place obligations on a state to restrict free exercise of religion, is it necessarily unconstitutional for the federal government to place those same obligations on a corporation?
Fast forward to present day, where that very question is before the Supreme Court. The case in question is that of Sebelius v. Hobby Lobby Stores, Inc. The legal question in this case is “Does the Affordable Care Act (2010), and thereby the federal government, abridge the free exercise rights of Hobby Lobby Stores by requiring them to provide cost-free contraceptives as part of their employer based healthcare programs?” As Justice Scalia is not only a sitting Justice, but also wrote the majority opinion for Smith, it is not out of line to attempt to draw conclusions as to his possible interpretation in this case based on what he has said thus far.
In Smith, Scalia noted several instances where religious exemptions from civil obligations would not be acceptable as they advance a compelling government interest such as: drug laws, animal cruelty, child labor laws, laws that provide for equality of opportunity, etc. Therefore, he says, “the First Amendment’s protection of religious liberty does not require [religious exemptions to laws of general applicability].”
Though Scalia usually looks directly to the text of the statute and/or the Constitution to answer questions of a statutes constitutionality, the text here fails to clarify. Instead it seems that his own precedent should take over. In order to not contradict himself and thereby lose credibility, he ought to use the standard he himself described in Smith.
From this it seems that Scalia will agree that a cost-free contraceptives requirement to employer provided healthcare coverage as implemented in the Affordable Care Act is not an abridgement of that employer’s Free Exercise rights. Not only is the requirement in furtherance of a compelling government interest (public health, especially in the reduction of unwanted pregnancies or other harm that could potentially arise thereof), but requiring that contraceptives be included in a healthcare plan is the least restrictive way to further that end.