Why “Religious Freedom” Has Gotten So Out of Hand

By Dave Niose

 

The Supreme Court made a very important statement that seems to have gone largely unnoticed in its landmark Hobby Lobby ruling on Monday. When it comes to religious freedom, the justices declared, the Constitution doesn’t matter.

You may think I’m exaggerating, but I’m not. The court unambiguously said that, in considering whether someone’s religious freedom is being violated, it may ignore traditional constitutional limits and instead invoke a much higher standard that, in its opinion, is required by statute. Because of this higher statutory standard – under the so-called Religious Freedom Restoration Act (RFRA) – the court’s 5/4 majority ruled that for-profit corporations may exercise religious objections to deny birth control coverage to female employees.

The court repeatedly emphasized that its decision results from the higher standard of religious freedom required by RFRA. “By enacting RFRA, Congress went far beyond what this court has held is constitutionally required,” Justice Alito wrote. (Alito, p. 17) “RFRA was designed to provide very broad protection.” The definition of religious freedom under RFRA, Alito said, should be understood as “an obvious effort to effect a complete separation from First Amendment case law.”

Thus, those outraged by the Hobby Lobby ruling should understand that the outcome is not the result of constitutional interpretation, but statutory interpretation. Why is this important? Because changing a statute is much easier than changing the Constitution.

To change a statute, the task is to convince Congress to pass a new law repealing or amending the statute. The constitutional amendment process, of course, is much more difficult, and therefore extremely rare. (The only other possible alternative – waiting for the justices on the court to change – is also no quick fix.)

Prior to RFRA, in defining religious freedom under the Constitution, the Supreme Court was much more restrictive, usually using what was known as a “balancing test” in analyzing free exercise claims. In the case of Braunfield v. Brown, for example, the court refused to find that Sunday closing laws infringed on the religious freedom rights of Jewish merchants (who were already closing on Friday night and Saturday, and thus were burdened by having to close on Sunday as well). But in the case of Sherbert v. Verner the balance tipped the other way, as the high court allowed a claim for unemployment compensation by a Jewish man who lost his job because he refused to work Saturdays.

18 COMMENTS

  1. This is not an encouraging turn of events, by any means. However, how confident can we be that this is the beginning of worse religious intrusions, and how confident can we be that this statute will prove to be a short-lived anomaly in the long run?

    • We can be pretty confidant based on the following: the court isn’t going to change unless a justice retires. If that happens it will most likely be Ginsberg who is probably the most liberal justice right now. If she goes whoever Obama nominates won’t be as liberal but will still be more in the Kagan or Sotomayer (sp?) mold than the theocrats.

      But the real question is what will happen in the coming US elections. If Americans get off their ass and vote we will probably end up with Hillary Clinton which IMO would be a step backward from Obama. I’m constantly amazed at how my friends on the left talk about how “tough” the Clintons are. That’s not what I remember from their 8 years in the white house. What I remember were endless examples of barely even trying to fight the right, DADT for example or NAFTA, the Clintons were always the ultimate middle of the road DINOs.

      On the other hand the alternative is far worse. If a Republican gets in the White House I think we can pretty much kiss the country good bye. More people like Thomas and Scalia will end up on the supreme court and the next time trouble breaks out somewhere the US military will be on it’s way to make another bad situation infinitely worse.

  2. @OP – In the case of Braunfield v. Brown, for example, the court refused to find that Sunday closing laws infringed on the religious freedom rights of Jewish merchants (who were already closing on Friday night and Saturday, and thus were burdened by having to close on Sunday as well). But in the case of Sherbert v. Verner the balance tipped the other way, as the high court allowed a claim for unemployment compensation by a Jewish man who lost his job because he refused to work Saturdays.

    This illustrates the problems created by trying to legally accommodate religious irrationality!

  3. One troublesome aspect of this overweening “respect” for religious convictions is that it privileges unfounded beliefs over established facts. The Hobby Lobbyists think that certain types of contraception cause abortions even though medical science says otherwise. Therefore they are able to refuse to pay for this type of medical care for thir employees on the grounds of their objection to abortion.

    In reality, this sort of fanatic wants to deny adult autonomy to women and relegate them to childbearing, cooking and the church.

    • Being Australian and observing from afar it is quite amazing to see how crippled the US has become by the religious right. For a nation that is so wealthy and powerful that it can lag so far behind most other developed nations in areas of health, education, income inequality etc is perplexing to say the least. While in Australia religion is nowhere near as dominant, the influence of the US is strong and the conservatives here are definitely using pages out of the Tea Party’s play book.

  4. same in phil… they think using condom is like killing babies.. even the sperm and egg dont meet.. all of the church here posted a big poster against rh bill. and they put the list of politician who support as “team patay” or team death.. sory 4 my english

    • Why doesn’t the church here help to correct the terrible conditions under which people work? Guards at Palawan Robinsons haven’t been paid for months, and they’re terrified to go to DoLE (Dept of labor and Employment) for fear of being fired. And this even though there are many biblical references to paying employees at the end of each day. (E.g. Leviticus 19:13, James 5:4, 1 Timothy 5:18, Deuteronomy 24:14-15, Proverbs 3:27-28, and many others.) I know of an instance in which the employer was willing to loan money already owed to his employee at ten percent interest, essentially a ten percent reduction in pay. I didn’t know that the bible was like a smorgasbord: take only what you want and ignore the rest.

  5. The following are excerpts of what an alien report on America, with references to the rest of the planet, would probably contain:

    Another curious observation occurred concerning an archaic practice found on other much more primitive planets referred to as “religion” (a concept that, fortunately, never occurred on my home planet, which seems a highly plausible explanation as to why we have had no “wars” as they call it on this planet) .

    In addition, there is also an assumption, especially in the the view of virtually all politicians, that this country is a “christian nation ”(see “pandering” in Political Elections, and “pay-for-prayer” sect leaders in Culture Studies). However, when I reviewed the report on the Average Percent of Brain Usage (per: Mass Neurological Scan results) in this country, not to mention the rest of this planet under the same spell, and the resulting decline, I came to understand why.

    RECOMMENDATION: I cannot emphasize this enough, DO NOT, UNDER ANY CIRCUMSTANCES, attempt to make contact with this country, or for that matter, any country on this planet at this time or in the near future!!! If a landing is required in case of an emergency that is a threat to crew safety, refer to Cloaking Protocol EC-2A Immediately!! Our sole directive is to seek out intelligent life elsewhere in this galaxy and the results of this study indicates this planet has a BELOW-AVERAGE ACCEPTABLE REQUIRED STANDARD OF INTELLIGENCE at this time. I would recommend the next Close-Proximity Scan be initiated in the next 100 to 200 Earth-years (provided, of course, this planet still exists), LONG-RANGE MONITORING (with it’s limitations) should continue to ensure this planet is not a threat to our planetary members.
    In closing, I will however note, that with all that has been reported in this examination, there are some reasonable, intelligent humans on this planet, the main obstacle being that there just is not enough of them to warrant any possible positive and peaceful contact, without causing a fear-induced world-wide panic. Hopefully this minority, their progeny and a regimen of promoting reason and fact-based science to other humans, will multiply enough in the future to make for a more positive report and the possibility of peaceful contact sooner than later. However, based on the current conditions there, to borrow an expression used by skeptics on this planet, “I wouldn’t hold my breath.”

    Yours Diligently, Capt. Mij Krik

    Copies: Intra-Galactic Studies Dept.
    Planetary Culture Studies Dept.
    Planetary Intelligence Studies Dept.

  6. I don’t think SCOTUS misinterpreted RFRA. As a matter of fact, Justices Kennedy, Scalia, Thomas, and Ginsburg warned of the problems of RFRA in City of Boerne v. Flores and ruled it unconstitutional as applied to the States in that case. In Boerne, Justice Stevens goes so far as to say that RFRA is unconstitutional in its entirety in that it demonstrates “governmental preference for religion, as opposed to irreligion” (I like his reasoning and fully support this.). In other words, the conservative Justices ruling in favor of Hobby Lobby (at least those above) and who are getting backlash for this ruling, were not fans of the legislation and warned of its problems. I am not a fan of the outcome of this case, but it seems to me that the monster is RFRA, not SCOTUS, and that Kennedy, Scalia, and Thomas tried to warn us of its problems in Boerne (1997). Justice Ginsburg now claims she was wrong then, but I think this is not credible.

    Hobby Lobby
    http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

    Boerne
    http://supreme.justia.com/cases/federal/us/521/507/case.pdf

    • I would actually like to see my employer AND my government get out of my personal business relating to my health decisions. I’m glad to know that the Supreme Court decision will NOT stop women from purchasing any of the 20 forms of birth control approved by the FDA, including the four that Hobby Lobby doesn’t want to pay for. Let’s not confuse a woman’s right to choose with the “right” to get birth control for free. Having said that, I also feel that it is time to remove special tax privileges from religious organizations and return to a secular form of government.

      • hazarddl

        I would actually like to see my employer AND my government get out of my personal business relating to my health decisions.

        While companies and government should keep out of personal decisions between patients and doctors, the Obama government has correctly tried to redress the imbalance in costs and affordability of healthcare, where Americans have been ripped off for decades! – Paying roughly twice the price paid in other developed countries, for a poorer service!

        http://thesocietypages.org/graphicsociology/2011/04/26/cost-of-health-care-by-country-national-geographic/

        I’m glad to know that the Supreme Court decision will NOT stop women from purchasing any of the 20 forms of birth control approved by the FDA, including the four that Hobby Lobby doesn’t want to pay for.

        Those “faith-head blinkers”, seem to confuse the religion-biased brain-addled, so as they are unable to recognise that companies and corporations don’t use contraception or medical services! They use consultants, auditors and accountants!
        PEOPLE use medical services.

  7. It is sad that no one is asking Hobby Lobby to explain why, in their show of piety to their religious dogma, do they not have a problem with continuing to provide insurance to their male employees that covers vasectomies and viagra. Who are these men having sex with? Maybe I should just shut my mouth…that is next on their agenda?

  8. How did RFRA get passed? By pressure groups lobbying congress in the absence of atheist or reasonable counter-lobbying? I would assume so. Who was RFRA for? Mescaline users. Some native Americans wanted to use magic mushrooms. They used mescaline in “religious ” ceremonies.

    As we know, religion is nonsense. So religion is not a real excuse for the use of hallucinogenic drugs. See: http://www.skeptic.com/eskeptic/14-07-09/
    Some people will believe anything. Even if they went to American public schools.

    We should lobby congress to repeal RFRA. And to require the public schools to teach more science and critical thinking.

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