By Richard H. Weisberg
The recent Hobby Lobby decision, which ruled that corporations with certain religious beliefs were no longer required to provide insurance that covers contraception for their female employees — as mandated by Obamacare — hinged on a curious piece of legislation from 1993. In a law that was unanimously passed by Congress and signed by President Clinton, the Religious Freedom Restoration Act (RFRA) stated that “Government shall not substantially burden a person’s exercise of religion.” The intention of RFRA was to offer an opportunity for religious people to challenge ordinary laws, state or federal, that had some adverse impact on their faith. The RFRA was a direct response to a case three years earlier, when the Supreme Court decided that laws that applied to everybody were acceptable even if they burdened a religious community. RFRA was Congress’ scream of protest to the Supreme Court’s jurisprudence.
By passing the RFRA in 1993, Congress was trying to steal the Supreme Court’s thunder. It was not fixing physical infrastructures; it was fixing a fellow branch of government. It was not over-ruling what it considered to be a faulty judicial reading of its own statutes; it was changing an interpretation of the Constitution itself. But isn’t the Court, for better or worse, the ultimate authority on the First Amendment? Didn’t the principle of separation of powers prevent the legislative branch from amending, by mere majority vote within its own chambers, the Constitution as understood by the justices at any given time?
Indeed, the Supreme Court went on to strike down RFRA in 1997, but only in part. It ruled that the states were not covered by RFRA’s change, but that the federal government was. This provided the opening for the Hobby Lobby decision, where several for-profit closely held corporations sought to defeat a federal regulation about contraception that applied generally to businesses, but offended their own belief systems.
Most discussion of Hobby Lobby, including even Justice Ginsburg’s dissent, has flexibly adapted to the idea that RFRA is constitutional, despite its extraordinary usurpation of judicial power. Her dissent correctly points out that her colleagues in the majority go even further than Congress in permitting religious belief to trump democratically passed legislation. Yes: the majority went much too far in holding that a corporation can “believe” anything or that free exercise rights are violated even when the central beliefs or practices of the religious are not directly implicated; but far worse was its acceptance, without discussion, of Congress’s power grab under RFRA. And the dissents doubled down on that departure from firm and fine traditions we call separation of powers.
Two examples of flexibility, however otherwise opposed, do not add up to the uncompromising defense of our Constitution needed at all times and perhaps especially now. The Supreme Court needed intransigently to re-assert its own power as a separate branch of government. Hobby Lobby’s attempt to veto part of Obamacare that offended its “corporate faith” would and should have been shut down immediately. Our Constitutional system of checks and balances required a clear statement. The Court, on both sides of Hobby Lobby, gave us the ambiguities that muddy the waters when compromise replaces principle.
Richard H. Weisberg, professor of Constitutional Law at Cardozo Law School, is the author of In Praise of Intransigence: The Perils of Flexibility.