I hadn’t given much thought to the legal basis upon which Hobby Lobby and similar corporations are fighting against birth control for their employees. I knew that it had to do claims that their religious freedom was being threatened, and I assumed that this must have something to do the First Amendment, which reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It was as I was listening to the most recent RH Reality Cast yesterday morning that I heard Amanda Marcotte mention that these recent attacks are not appeals to the First Amendment. What, what? Marcotte was interviewing Gretchen Borchelt, Senior Counsel and Director of State Reproductive Health Policy at the National Women’s Law Center, and they were discussing corporate-driven lawsuits attacking employee access to contraception. It was here that I learned that these types of lawsuits are not direct appeals to constitutional freedoms, but to a federal law called the Religious Freedom Restoration Act (RFRA, pronounced by Marcotte as “Riffrah”).

Yes, yes – I’m behind the curve on this one (like, by three decades), but I thought that maybe I’m not the only one who wrongly assumed that these recent lawsuits were based on direct arguments to the Constitution. And as long as I’m going to research the RFRA a bit, I thought that I would share it here for others who might like the info.

Disclaimer: I am not a lawyer. Or all that savvy of a political buff. Or much of a historian, actually. My point is, I’m going at this as a layperson. If I’ve gotten anything wrong, please call me out in the comments so I can fix it. If I have gone too far or not far enough with an interpretation, please let me know. I value the time and effort that constructive criticism takes and am grateful for it.

The Religious Freedom Restoration Act – What is it? Where did it come from?

RFRA – according to Wikipedia – was passed in 1993, ostensibly with the “aim of preventing laws that substantially burden a person’s free exercise of religion.”

The Religious Freedom Restoration Act applies to all religions, but is most pertinent to Native American religions that are burdened by increasing expansion of government projects onto sacred land.

Okay – show of hands: Who here is surprised that white, conservative, extremist Christians found a way to co-opt a law meant to protect Native Americans and apply it in a way that actually denies individual freedom? Anyone? Bueller?

RFRA came about after some courts made some shit calls that favored corporate and political interests over the interests of Native Americans. Since 1993 RFRAs have been adopted at state and local government levels, and have noteably been used to protest for limited legal use of peyote (won), against paying taxes (lost), against the use of social security numbers (lost), and for discrimination in hiring practices by faith-based organizations (won). Oh, and the majority of RFRA cases have been brought by Christians. The great burden of Burwell v. Hobby Lobby appealed to RFRA.

The Sherbert Test

RFRA employs the Sherbert Test, which is comprised of four criteria to help determine if the government has violated an individual’s right to religious free exercise. That is, the Sherbert Test is a tool which helps to judge whether the Free Expression Clause of the First Amendment has been violated. The four criteria are:

For the individual, the court must determine

whether the person has a claim involving a sincere religious belief, and

whether the government action is a substantial burden on the person’s ability to act on that belief.

If these two elements are established, then the government must prove

that it is acting in furtherance of a “compelling state interest,” and

that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

In summary: Does the person believe the thing? Is the government infringing on the thing? If they are infringing, do they have a good reason for it? If so, has the government done what they could to make the infringement as least painful as possible?

Let’s focus on this for a second: Let’s say Hobby Lobby (point of order: not an individual. Fucking SCOTUS.) does hold a sincere religious belief (as opposed to my personal opinion that they’re merely anti-woman, cash-greedy assholes), and that the Affordable Care Act’s contraceptive mandate does place a substantial burden on their religion-based practice of treating women like property incapable of rational thought or independent decision-making. Let’s just say.

So the first two criteria are met. Onto the next part of the Sherbert Test.

SCOTUS agrees that the contraceptive mandate is furthering a “compelling state interest.” (I’m guessing that the compelling state interest is equal access to health care, in this case, contraception.) But, the outcome of the Hobby Lobby case was the court’s finding that the contraceptive mandate was not the least restrictive manner to pursue “the compelling state interest.”

RFRA, RFRA, RFRA.

(To put the cherry on the top of the Hobby Lobby decision, SCOTUS pointed toward an alternative that was less restrictive – allowing corporations who object to the mandate to fill out a form stating that they have a religious objection and thus could be exempt. At this point the government or insurers would assume the cost. But three days after Burwell v. Hobby Lobby SCOTUS decided…nah, let’s not even give women that much.)

RFRA – who cares?

So why does it matter whether the Hobby Lobbyists are using RFRA or appealing directly to the First Amendment to pursue their lawsuits? As far as I can tell, RFRA sets up a weird standard that allows individual objections to get around what’s called general applicability, an idea which holds that when a law is applied to everyone – and is not directed at religion specifically – that law is not a violation of religious freedom. In Burwell v. Hobby Lobby and similar cases, general applicability has been swept under the rug. Religious freedom claims can get you Special Treatment™.

The First Amendment doesn’t need RFRA. RFRA is a federal law that has allowed an expansion of the Constitution to achieve vile ends that I can’t believer were originally intended.

There is room for Congress to override some of the damage done by Burwell v. Hobby Lobby, such as the proposed (and blocked) legislation dubbed the Not My Boss’s Business Act.

During Reality Cast, Amanda Marcotte referenced Katha Pollitt’s The Nation article, Why It’s Time to Repeal the Religious Freedom Act. In Pollitt’s article she notes that “…expanding the religious freedom of individuals or corporations is simply not a good way to make public policy.”

Pollitt recognizes that although it would be a very good thing to repeal RFRA – a law that has been abused and used to abuse much more often than to support individual liberty – no one is talking about doing away with this pain-in-the-secular-ass law. It’s embedded in our legal and justice system at federal, state and local government levels. It shared near-universal, bipartisan support when it was first passed and signed into law in 1993. It’s not going away anytime soon.

And that is my attempt at better understanding how the the term “religious freedom” is being used to attack our access to reproductive healthcare.

Huge Aside

At this moment allow me to take a wild detour because Google and Wikipedia are gawdamn rabbit holes of interesting information. Searching “religious free exercise” brought me to Free Exercise Clause, which delves into Reynolds v. United States, an interesting case from 1878 in which SCOTUS upheld a bigamy conviction because to do otherwise would be to open the door to all sorts of not-cool shit. From the ruling:

Of federal territorial laws, the Court said: “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.”

So, your religion may require you to eat human babies, but the government is gonna be putting a lock-down on the practice of that one.

Also, Neutral Laws of General Applicability is a wild Google romp. And check out the full Wikipedia entry for Burwell v. Hobby Lobby for more info about stuff I’ve written here.