SALT LAKE CITY — Just over 25 years ago, Congress nearly unanimously passed new religious freedom protections.
This week, it held a hearing on why those protections should be reined in.
The House Committee on Education and Labor met Tuesday to debate how to balance religious freedom with other values, including expanding access to health care and reducing discrimination. Some argue that religious exemptions to general laws were never meant to be as common as they are today.
"If civil liberties and legal rights exist only in the absence of a neighbor's religious objection, then they are not rights, but empty promises," said Rep. Joe Kennedy, D-Massachussetts, who is sponsoring legislation that would limit the instances in which religious freedom claims can be made.
The hearing focused mainly on religiously motivated discrimination, but that's not the only factor fueling criticism of broad religious freedom protections, according to legal experts. The path from the early 1990s to today features many notable pit stops, including the Supreme Court's controversial ruling in Burwell v. Hobby Lobby, delivered five years ago this week.
The case involved employers who were religious objectors to the Affordable Care Act and didn't want to cover some of the forms of birth control they were required to offer to employees. The Supreme Court had to define the limits of religious freedom law, determining what to do when beliefs interfered with health-related policy goals.
Legal experts don't agree on whether the Supreme Court's ruling in favor of religious objectors was right, but most acknowledge that it harmed religious freedom's reputation among liberals by allowing it to overrule other important protections. The case helped turn what was once nearly universally considered a human right into something a growing group of Americans want to limit.
"Even if you agree the Hobby Lobby decision was correct, it was just a bad idea for religious freedom," said Frank Ravitch, a law and religion professor at Michigan State University.
The Hobby Lobby case
The Hobby Lobby case was one of dozens filed on religious grounds to challenge the Affordable Care Act's contraceptive mandate, which required most employers with 50 or more employees to cover a variety of forms of birth control in company health insurance plans.
Religious objectors to the mandate said it forced them to pay for drugs that cause abortions. Because abortion went against their religious beliefs, they argued the Affordable Care Act infringed upon their religious freedom rights.
The government had exempted churches and other houses of worship from the mandate and offered an accommodation to religiously affiliated nonprofits. Nonprofits could notify their insurance provider about their objections, and the provider would then arrange contraceptive coverage directly with employees.
As a for-profit business, Hobby Lobby could not access this accommodation, despite being owned by a conservative Christian family. It faced lofty fines for not covering a full range of birth control options. It challenged this arrangement in court, claiming that the government could accomplish its goal of expanding access to contraceptives without forcing business owners to violate their religious beliefs.
"Given that the government was already providing an accommodation to a whole bunch of other types of groups, it didn't have any good reason for denying one to Hobby Lobby," said Luke Goodrich, vice president and senior counsel for The Becket Fund for Religious Liberty.
The Hobby Lobby case, like this week's congressional hearing, centered on the Religious Freedom Restoration Act, which helps judges apply the religious freedom protections offered by the First Amendment. It creates a balancing test between the religious interests of individual Americans and the government's policy goals.
In cases involving the act, individuals must show they have a sincerely held belief that's been burdened by government action. If they do, the government has to prove it has a compelling reason to enact the policy and has no better way to achieve the desired outcome.
Although the Religious Freedom Restoration Act received widespread support when it passed in 1993, it's become increasingly controversial. Legal experts often clash over how it's applied, and the Hobby Lobby case was no exception.
The biggest sticking point in the case was whether a for-profit corporation is covered by religious freedom protections. The Supreme Court said yes, and many liberal legal scholars are still upset about it.
"The ruling in Hobby Lobby was shocking for a number of reasons. The first is the Supreme Court's finding that a corporation could have religious beliefs," said Katherine Franke, a professor of law, gender and sexuality studies at Columbia University.
Lawmakers who voted for the act in 1993 weren't anticipating that kind of outcome, Ravitch said.
"If for-profit entities had been included in the Religious Freedom Restoration Act, it would have never been passed," he said.
Hobby Lobby said some extreme things about what counts as a substantial burden on the exercise of religion, suggesting that pretty much anything a claimant says is a substantial burden has to be accepted as a substantial burden. I don’t think the Supreme Court will be able to live with it in the long run. – Douglas Laycock, a professor of law and religious studies at the University of Virginia
Other religious freedom advocates take issue with that claim, arguing that Americans don't give up their right to religious freedom protections when they open a for-profit business. Congress could have closed the door to corporate religious freedom claims in the 1990s and chose not to, they said.
However, even some members of this latter camp agree the court’s ruling was flawed. When determining whether the contraceptive mandate burdened religious beliefs, justices focused on the fines businesses would have to pay for refusing to provide birth control, rather than considering whether giving employees the option to use birth control was enough of a problem for Hobby Lobby's owners that the government needed to change the law.
"Hobby Lobby said some extreme things about what counts as a substantial burden on the exercise of religion, suggesting that pretty much anything a claimant says is a substantial burden has to be accepted as a substantial burden," wrote Douglas Laycock, a professor of law and religious studies at the University of Virginia, in an email. "I don't think the Supreme Court will be able to live with it in the long run."
The ruling did not exempt Hobby Lobby from the contraceptive mandate, but it did instruct the government to give them the same accommodation available to religiously affiliated nonprofits. It emphasized the importance of protecting religious freedom wherever possible.
The Religious Freedom Restoration Act "was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this court has held is constitutionally required," wrote Justice Samuel Alito for the 5-4 majority.
By emphasizing the strength of religious freedom protections, the Hobby Lobby case benefited all people of faith, Goodrich said. Members of minority religious groups, including Native Americans, have used it to defend their own practices and beliefs.
For example, in McCallen Grace Brethren Church v. Jewell in 2016, the 5th Circuit Court of Appeals cited Hobby Lobby in its decision to protect Native Americans who use eagle feathers in religious ceremonies. Many previous challenges to the government's ban on eagle feather ownership had failed, despite being argued under the Religious Freedom Restoration Act.
"They would have been far less likely to win prior to Hobby Lobby," Goodrich said.
But, in another sense, the ruling harmed religious freedom by making it seem like a dangerously powerful protection that could limit access to quality health care and other human rights, said Laura Durso, vice president of the LGBT Research and Communications Project at the Center for American Progress.
"It was a real red flag," she said, noting that the case is one of the reasons the Equality Act, which was passed by the House of Representatives last month and would create federal LGBTQ nondiscrimination protections, seeks to limit the application of the Religious Freedom Restoration Act.
After Hobby Lobby
On a basic level, the Hobby Lobby ruling paved the way for the many changes to the contraceptive mandate that have taken place over the last five years. As of last November, most religious or moral objectors to birth control can sidestep this piece of the Affordable Care Act.
More broadly, the Hobby Lobby ruling created a fork in the road of religious freedom litigation. It opened the door to more — and some would say bolder — religious freedom claims, while also inspiring some civil rights activists to begin opposing strong religious freedom protections.
"Some advocates (and some judges) want to take Hobby Lobby and run with it; other advocates (and other judges) want to minimize it," Laycock said.
The ruling did not lead that many more companies to ask for exemptions from the contraceptive mandate or other health care-related rules, but it did inspire other types of cases. Traces of Hobby Lobby are present in current clashes over the rights of small business owners to turn away same-sex couples, like last year's Masterpiece Cakeshop case before the Supreme Court, Laycock said.
"Hobby Lobby does provide support for the claims of wedding vendors, many of whom have incorporated their business," he said.
Additionally, the Trump administration has used Hobby Lobby and other high-profile Religious Freedom Restoration Act rulings to justify proactively protecting health care providers or faith-based adoption agencies that won't work with some members of the LGBTQ community.
"It’s weaponizing RFRA to undermine civil rights protections, deny people access to health care and government services, and even deny children loving homes," said Rachel Laser, president and CEO of Americans United for Separation of Church and State, during her testimony at this week's congressional hearing.
Durso, who opposed the Hobby Lobby ruling, said the case changed the public's perception of religious freedom. It's now increasingly seen as a weapon to wield against less powerful Americans instead of an important protection for members of minority faiths.
"It emboldened people who are opponents of equality for LGBTQ people," she said.
Culture war cases about abortion, contraception and marriage are not the typical cases. They get all the publicity, and they are poisoning public opinion about religious liberty on the left. – Douglas Laycock, a professor of law and religious studies at the University of Virginia
The Hobby Lobby ruling has inspired efforts to limit how the Religious Freedom Restoration Act is applied, Ravitch said. It helps explain why Tuesday's congressional hearing took place and why bills seeking to create state-level Religious Freedom Restoration Acts have failed to pass over the last five years.
He believes Congress needs to adjust the act in order to get religious freedom back on the right track.
"I think the protection of for-profit entities has driven opposition to religious freedom," Ravitch said.
Others argue that religious freedom's reputation will improve naturally, as legal trends revert to the mean. Affordable Care Act-related cases distracted from the fact that religious freedom cases still typically involve members of minority faiths, who enjoy more support from liberal civil rights organizations than conservative Christians.
Religious freedom is more palatable when it's separated from culture war issues, Laycock said.
"Culture war cases about abortion, contraception and marriage are not the typical cases. They get all the publicity, and they are poisoning public opinion about religious liberty on the left," he said.
The lesson of the controversy surrounding the Hobby Lobby ruling shouldn't be that we need to weaken religious freedom protections, said Franke, who also serves as faculty director for the Law, Rights and Religion Project. Instead, we should commit to applying them wisely and equally to benefit all kinds of religious believers.
"We have to be discerning about where we use (the Religious Freedom Restoration Act,)" she said.