Today the Supreme Court is hearing oral arguments in the cases of Hobby Lobby and Conestoga Wood Specialties.  Both of these companies filed lawsuits, and asked for preliminary injunctions against the enforcement of the Contraception Mandate in the Affordable Care Act.  The ACA provides exceptions to the Contraception Mandate for Churches and non-profits (among others), but it doesn’t provide an exception for for-profit companies.  The Plaintiffs are basing their arguments on a statute called the “Religious Freedom Restoration Act” (RFRA).  Given the importance of this case, I thought that it might be helpful to explain briefly how RFRA works, and some of the arguments that will probably be made before the Supreme Court today.

First, why is this case being brought under RFRA and not the First Amendment, since the First Amendment protects the free exercise of religion against government interference?  Before a case called Employment Division v. Smith, 494 U.S. 872 (1990), these types of cases were decided under the First Amendment.  In Smith, however, the Supreme Court decided that the Free Exercise Clause of the First Amendment could not prevent the government from enacting a law that burdened religious practices if the law was generally applicable.  Congress stepped in in 1993 and enacted RFRA, which basically overturned Smith, and allowed plaintiffs to once again bring free exercise claims against generally applicable laws.

So, what does RFRA provide?  Well, it states that the “Government shall not substantially burden a person’s exercise of religion,” even by the application of a generally applicable law.   42 U.S.C. § 2000bb-1, et seq.  However, there is an exception to this rule — the Government may substantially burden a person’s free exercise of religion if it has a compelling interest, and if the enforcement of that compelling interest is accomplished in the least restrictive means possible.   This creates essentially four major points that are argued under a RFRA claim:

The plaintiffs (in this case Hobby Lobby and Conestoga Wood Specialties) must show that

(1) they are engaging in the exercise of their religion which is being

(2) substantially burdened by the Government.

Once they show this, the Government must show that

(3) it has a compelling interest in substantially burdening their free exercise, and

(4) that it is doing so in the least restrictive means possible.

There is an additional wrinkle in these cases, though, because Hobby Lobby and Conestoga Wood Specialties are corporations.  Therefore, they must also show that they can be considered “persons” which can engage in the exercise of religion under RFRA and can therefore receive the protection of the statute.

So, what are the arguments that are likely to be made in the Supreme Court today?  First, whether or not the Plaintiffs can be considered “persons” is key — if they can’t be, the whole argument fails, and there is no need for the Court to even look at the requirements of RFRA.  Plaintiffs will argue that they should be considered “persons” under RFRA and should be protected by it.  They will argue that being forced to pay for contraceptive coverage that is against their religious principles substantially burdens their religion.  “Substantially burdens” means that it’s more than just an “inconvenience”  to their religious exercise, or a “diminishment” of their religious experience.  The religious exercise in question doesn’t need to be central to the practice of the particular religion in question, but it must be religious in nature.

If the Plaintiffs can show this, then the Government must then show that providing contraception free of cost to women is a compelling interest of the government which overrides Plaintiffs’ free exercise rights, and that it is enforcing this interest in the least restrictive means possible.   Plaintiffs will most likely argue that even if this could somehow be considered a compelling interest, the Government has made all kinds of exceptions for Churches, non-profits, and “grandfathered” health care plans, so it would be no problem for it to make an exception for them as well.  As a result, this isn’t the least restrictive means of implementing any interest the government has.

This is necessarily a very brief summary of what might be argued, but I hope that this helps give a general idea of what to look for as these cases are argued. Let’s all pray for wisdom and clear thinking on the part of the justices and the attorneys — what is decided in these cases will effect many peoples’ lives and the future of religious freedom in the United States.

Our Lady, Seat of Wisdom, pray for us.

St. Thomas More, pray for us.

DISCLAIMER:  I am not connected with the lawyers arguing this case in any way.   The above are just my thoughts based on what I know about RFRA.

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