July 08, 2014

Some Hobby Lobby Reflections -- What Does RFRA Require

Most folks were blissfully unaware of the Religious Freedom Restoration Act before the Hobby Lobby ruling was handed down. That should not surprise anyone, given that most Americans are unaware of most laws and would, in any event, presume that the government should not be telling religious people or organizations that they must act contrary to their religious beliefs in most instances. But now that everyone has been made aware of that law, let's look at what it requires.

Every RFRA case has at least three threshold questions:

(1) Are the litigants bringing a suit based on sincere religious objections?

(2) If they are sincere, are the litigants burdened in their religious exercise?

(3) If they are burdened, is the burden substantial?

Only if all three are answered affirmatively do courts engage in rights-balancing analysis, which consists of two subsequent questions:

(4) Is the state pursuing a compelling state interest?

(5) If so, is the state pursuing that interest using the least restrictive means possible?

So let's think about these for a minute. The question of sincerity simply revolves around whether or not one is serious in one's belief. The question of burden is about whether one is being required to go against one's beliefs. And the question of whether the burden is substantial goes to the question of how serious the burden is.

So let's look at my previous piece in which I used the example of Catholics and the use of wine in Holy Communion. It is beyond doubt that the Catholic Church teaches that the bread and wine consecrated in the Mass really and truly becomes the body and blood of Christ and that receiving Communion is a sacrament in which the faithful ought to be participate in if they are of the right disposition. Imposing criminal sanctions upon the participation in that sacrament due to age would obviously be a tremendous burden.

Now one could argue that there are compelling state interests at work -- preventing impaired operation of a motor vehicle by a young person or preventing the intoxication of a minor -- in banning alcohol consumption by those under the legal age to purchase and consume alcohol. However, citing and punishing those who receive or distribute communion because of the alcoholic content of one of the elements used is not the least restrictive means of carrying out those laudable ends, not the least because of the reality that the amount of alcohol consumed by an individual receiving communion would be insufficient to cause any impairment. The de facto criminalization of the sacrament for those under the legal drinking age -- or the de facto legal requirement that young people receive communion only under one form -- could never be seen as the least restrictive means of furthering the ends of the statutes in question.

I think a similar issues might well be raised in this current case from Louisiana regarding the seal of the confessional, which I suspect will ultimately have to be resolved under RFRA.

Which brings us back to Hobby Lobby. The justices found -- by my reading by a margin of 7-2 and some would argue unanimously -- that the first three tests were met by Hobby lobby. The matter then came down to the final two issues -- is free birth control for all a compelling government interest and has the government found the least restrictive means of providing it. The issue could be resolved based upon the final test -- no, the government was not using the least restrictive means of advancing its interest vis-a-vis the beliefs of Hobby Lobby's owners. It rendered answering the fourth question irrelevant -- though I wonder if we might not see that question answered in one of the coming cases from religious non-profits such as the Little Sisters of the Poor or Wheaton College.

But some have asked, what if an employer claims a belief that they must perform human sacrifice or discriminate against people because of race. Presuming they could make their case for the first three parts, it is beyond question that preventing the taking of human life is a compelling government goal -- and past precedent makes the same argument on racial discrimination. Presumably any statute or regulation challenged in such cases would be seen as a least restrictive means of accomplishing that end, and the RFRA challenge would fail. Indeed, more RFRA challenges fail than succeed for that very reason.

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