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.