The framers of the constitution were dealing with a world in which it was assumed that some form of Christianity was an inevitable feature of public life. They were prepared to make a departure from the English tradition in which a specific denominational church was given the privilege of establishment. It does not seem plausible to me that they could have anticipated the world of the 21st C in which a sizable portion of the public has serious questions about whether religion of any kind should play a role in public affairs. Not being a strict constructionist it doesn't seem important to me that we need to apply views from the 18th C to our present realities. However, we have a constitution which grants religious rights and as long as it does we will struggle with the problem of defining those rights and balancing them against other compelling public interests.
It seems to me that the Hobby Lobby decision was primarily about religious accommodation and not fundamentally about women's reproductive rights. It certainly has a practical impact on women's rights and the resulting concern and anger about that is reasonable and justified. However, in the opinion the court majority acknowledged that the provision of broad accessibility to contraceptive health care is a valid and compelling interest of public policy. The issue they were addressing is about how that should be accomplished, not whether it should be accomplished at all.
At this point in American society, women's rights and LGBT rights are wrapped in an endless battle with conservative religious belief. The tide has begun to shift away from the privileged position of conservative Christianity, but it still benefits from the forces of tradition and the institutional might of several large religious denominations. They still carry real practical political clout.
To the extent that SCOTUS may have blazed new judicial territory in the Hobby Lobby decision it was likely in finding that closely held corporations are entitled to religious rights. However, that is basically consistent with their findings in Citizens United that corporations are entitled to rights of political speech. Both types of rights arise from the first amendment. However what I think is very important is to realize how the court reached the conclusion that there is a right to religious accommodation. They did not create a new legal precedent directly tied to the constitution. They based the finding on the terms of the Religious Freedom Restoration Act. This is legislation enacted by congress in 1993. It could be repealed or modified by congress. Unlike a decision like Roe v Wade, Hobby Lobby does not supersede or limit the power of congress to change the law.
The RFRA came about in response to a SCOTUS case in which the court refused to support religious rights for adherents of Native American traditions. The opinion was written by that well known defender of the Christian faith Justice Scalia. It created a political firestorm among both liberals and conservatives.
This law reinstated the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion; therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The law provided an exception if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.” Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues. The second condition is that the rule must be the least restrictive way in which to further the government interest. The law, in conjunction with President Bill Clinton's Executive Order in 1996, provided more security for sacred sites for Native American religious rites.In 1997 SCOTUS overturned part of the act in terms of its power to control the laws of states and local governments. At this point it only applies to activities of the federal government. Some states and municipalities have adopted their own versions of an RFRA.
The right to religious accommodation under RFRA is a limited right subjected to the legal tests referred to in the quoted section above. It requires that in acting to accomplish compelling public interest the government must use the least restrictive alternative. That is the language used in the Hobby decision.
There is one particularly interesting case where found limits to a right to religious accommodation based on the RFRA.
In the case of Adams v. Commissioner, the United States Tax Court rejected the argument of Priscilla M. Lippincott Adams, who was a devout Quaker. She tried to argue that under the Religious Freedom Restoration Act of 1993, she was exempt from federal income taxes. The U.S. Tax Court rejected her argument and ruled that she was not exempt. The Court stated: "...while petitioner's religious beliefs are substantially burdened by payment of taxes that fund military expenditures, the Supreme Court has established that uniform, mandatory participation in the Federal income tax system, irrespective of religious belief, is a compelling governmental interest." In the case of Miller v. Commissioner, the taxpayers objected to the use of social security numbers, arguing that such numbers related to the "mark of the beast" from the Bible. In its decision, the U.S. Court discussed the applicability of the Religious Freedom Restoration Act of 1993, but ruled against the taxpayers.Many here will respond to the difference in rejecting a pacifist position and giving support to opponents of women's health care. However, this does point up the reality that the reach of rights under the RFRA is not unlimited and this decision has not necessarily opened the floodgates to a broad range of abuses.
Up until now the adherents of major Christian denominations seldom had reason to worry about accommodation of the comfort of their religious sensibilities. They were already heavily enshrined in law and practice. It had been members of minority religions such as Native Americans, Jews and Muslims who had found it necessary to seek legal protection for their religious practices. Now conservative Christians are finding that their traditional position of privilege is being eroded by laws and court decisions. They are trying the use the first amendment in various ways to establish a right to freedom of conscience. The RFRA is only one avenue in that effort.
Militant secularists would likely prefer to see a society in which no accommodations are made for religious beliefs and practices in public programs and facilities. That is probably not a majority position for the American public. This is a debate and a battle that is going to be with us for a long time to come. People wishing for some form of immediate resolution are not likely to find it. There are a number of other cases in the pipeline about the ACA and its mandates. There will be litigation in response to the Hobby Lobby decisions in an attempt to define its provisions. Much more is yet to come.