Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [. . .] (First Amendment to the U.S. Constitution.)In Employment Division v. Smith, Justice Scalia wrote for the U.S. Supreme Court that:
We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). [Emphasis supplied.]Congress did not like this interpretation of the free exercise clause, and passed the Religious Freedom and Restoration Act by large majorities and President Clinton signed the law. What did RFRA do? Expressly RFRA was intended to:
The purposes of this chapter are— (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).Justice Scalia could have retorted that he followed Sherbert and Yoder in Smith. So, no "restoration" was required. Justice Alito, writing in Hobby Lobby v. Burford, is dishonest (I use this word purposefully) in his opinion when he writes, as you can see below the flip:
Nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment.Other than the express language I quoted above from RFRA, of course. And, of course, there are Justice Alito's own words in the same opinion:
Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test forstriking sensible balances between religious liberty and competing prior governmental interests.” [Emphasis supplied.]But leave the dishonesty aside, what of this interpretation of RFRA? IF in fact RFRA means what the Hobby Lobby court says it means, what of the First Amendment's prohibition that "Congress shall make no law respecting an establishment of religion." Isn't RFRA a law intended to favor religious exercise over non-religious exercise? As interpreted by the Hobby Lobby court, it is, and thus is unconstitutional. I explored this issue in this post. I quoted Justice Stevens concurrence in the case of Boerne v. Flores:
In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a "law respecting an establishment of religion" that violates the First Amendment to the Constitution. If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985). [Emphasis added]Justice Stevens' analysis is based solely on the text of RFRA. But the Hobby Lobby decision makes clear that the court's interpretation of RFRA not only will favor "religion, as opposed to irreligion," but certain religious beliefs over others.
In Hobby Lobby, Justice Alito insists the decision is narrow, that this does not mean that religious beliefs that are "burdened" because the insurance coverage mandated by the Affordable Care Act, which includes immunizations or blood transfusions, will be relieved of this obligation under RFRA. Alito does not explain why this is so. What is different about the religious belief against immunizations and blood transfusions versus Hobby Lobby's objection to birth control? Or, racial, gender or sexual orientation discrimination or that matter? Here is Alito's hand-waving:
Our decision should not be 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.What is Alito saying here? Simply this: Some religious beliefs are more equal than others. Immunization? That's different. Your religious objections on that will hold no water in the court. You object to interracial relationships? (See Bob Jones University v. United States.) Sorry, that religious belief is not respectable, so no "religious liberty" for you. So you want men and women to be segregated on a public transit bus for religious purposes? Sorry, that religious objection gets no respect here.
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
Whether this impulse of the court to favor certain religious objections over others is driven by political calculation or just the belief that some religious beliefs are better than others, it runs afoul of the establishment clause.
Justice Kennedy attempts to answer the obvious problem here:
In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place. Ante, at 43–44.But this only highlights the problem, in my view. The government has already favored certain religious views by providing accommodations to religious organizations that run secular institutions. Because of this favoritism, persons holding the same religious objections find their religious objections can be accommodated a well. This is establishing a hierarchy of religious belief by the government. And that is precisely what the establishment clause prohibits.
"[T]he American community is today, as it long has been, a rich mosaic of religious faiths." Town of Greece v. Galloway, 572 U. S. _, _ (2014) (Kagan, J., dissenting) (slip op., at 15). Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise. Ante, at 45–46. [Emphasis supplied.]
I argued that apart from the first-order establishment clause violation this entailed, it was also a slippery slope that would lead to private individuals making the same claims. Yes, I told you so. But this i not just an I told you so. It is also a warning about how the Roberts Court operates. first they issue a "narrow" ruling. See NAMUDNO. Then they issue the broad ruling. See Shelby County.
Does this mean all religious objections to secular laws will now be viewed favorably by the court? Of course not.
After all, to the court, some religious beliefs are more equal than others.
But any belief that can be used to restrict women's rights are at the top of the heap for the Roberts Court when it comes to religion. That war by the Roberts Court will not end.