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Starr: Greens’ religious objection to HHS mandate valid

Starr: Greens’ religious objection to HHS mandate valid
March 26
04:08 2014
Ken Starr

Ken Starr

During the first year of his two-term Presidency, Bill Clinton waxed eloquent when signing the Religious Freedom Restoration Act into law. The President forcefully warned of judicially-created dangers to Americans’ religious freedom. A lawyer himself, President Clinton addressed the nation not only in legal and constitutional terms but spoke more broadly into American culture.

The Supreme Court, he lamented, had inflicted a grievous wound on America’s first freedom in the case of Employment Division, Department of Human Resources of Oregon v. Smith. There, the Court rejected the religious freedom claims of two Native Americans who had lost their state-government jobs solely because they used peyote in their traditional worship celebration.

The Oregon case contained not a hint of illicit trafficking or extra-sacramental abuse, but the Supreme Court majority was unmoved by the discharged employees’ claims that peyote was a sacrament in Native American worship.

The Smith Court laid down a bright-line rule: if a governmental law or regulation is “neutral” and “generally applicable” to one and all – in effect, if the measure is not directly aimed at religious practices – then it is constitutionally permissible. The judiciary would no longer be in the business of carving out exemptions or creating exceptions to neutral laws of general applicability. The message: if a faith community (or individual) wants an exemption, go lobby the politicians.

Cabining once-robust judicial power, the Smith Court went to some length to distinguish two landmark cases that had done exactly what the majority of Justices now condemned as judicially out of bounds. The first, Sherbert v. Verner, upheld the claim of a Seventh Day Adventist for state unemployment benefits when her employer fired her for being unwilling to work on the Sabbath. The second, Wisconsin v. Yoder, provided a constitutionally-based exit visa for Old Amish parents seeking to halt public schooling once their students had finished the eighth grade.

Ironically, those two off-cited cases had been on the books for decades. The heavens had not fallen, nor had a clamor arisen in legal or government circles for Sherbert and Yoder to be reversed. The Oregon peyote case thus came as a constitutional bolt from the blue.

In response, Congress erupted in righteous indignation. The House was unanimous, the Senate nearly so in passing the Religious Freedom Restoration Act in 1993. The idea was simple: Religious freedom would be restored, and the Supreme Court’s anti-liberty ruling in the sacramental peyote case reversed. Thus the statute’s lofty name, now infelicitously referred to as RFRA. Congress and the President cheerfully collaborated to “restore” the body of judge-created law that had been deeply compromised, if not for all practical purposes interred, by the peyote-as-sacrament case.

In their zeal to restore religious freedom, however, the political branches had overlooked a basic lesson from Civics 101. In a constitutional republic, the Supreme Court is indeed supreme when it comes to saying what the Constitution means.

The Court did not take lightly the political branches’ woodshedding attempt. Five years after President Clinton’s vigorous signing statement and enthusiastic exercise of the law-signing power, the Supreme Court pulled rank and invalidated RFRA to the extent it applied beyond federal power.

The legislative showing undergirding RFRA, the Court concluded, fell far short of the constitutionally-requisite mark. Writing for the majority, Justice Anthony Kennedy performed an elaborate compare-and-contrast exercise. As opposed to the extraordinary circumstances justifying the Voting Rights Act back in the 1960s, little if any systemic problem had been demonstrated in Congressional hearings with respect to state action aimed at curtailing religious liberties. Not even close. Federalism values logged yet another victory in the decade (the 1990s) that represented a high-water mark of High Court solicitude for States’ rights.

That decision — City of Boerne v. Flores — is hugely important to constitutional law, but its basic holding means that in Hobby Lobby, the federal government now has to run the RFRA gauntlet. The Hobby Lobby case is entirely about HHS regulations implementing the Affordable Care Act. For the government to succeed in a RFRA-grounded challenge is a formidable task.

In plain English, in Hobby Lobby the Obama Administration now has to demonstrate to at least five Justices that HHS has a profound (“compelling”) governmental interest in requiring Hobby Lobby (and its owners, five members of the Green family in Oklahoma City) to provide all 20 contraceptive methods ordained by the FDA. While the Greens, as evangelical Christians, have no qualms about sixteen of the twenty methods, they profoundly object to being required to offer their employees four methods that they believe constitute the taking of innocent human life. As to the sincerity of their objection, there is no doubt. Nor is this an idiosyncratic belief, highly disruptive of orderly government, akin to woebegone arguments that taxation is unbiblical, or that participating in the Social Security program abridges freedom of conscience.

The Greens’ story embodies the American dream. The founders, David and Barbara Green, started in a garage with a simple idea and a deep work ethic. But they were not monomaniacal in their quest for business success. Far from it. Hobby Lobby’s stores around the country close on Sundays. The Greens don’t take roll among the employees. No compulsory church membership or the like. It’s up to their 13,000 employees to decide whether to join a faith community or otherwise how to spend their free time on what the Greens honor as the Lord’s Day. Call it freedom of choice.

Far from quixotic bring-down-the-entire-government sorts of claims, the Greens’ specific concerns about HHS’s policies are shared broadly and deeply by millions of Americans. Catholic bishops, evangelical leaders and Orthodox Jews are all singing the same pro-life refrain. What has happened is that the federal government doesn’t care about their objections. As with politics generally, it finally comes down not to personalities and opinion polls but to basic policy choices: According to the federal government, reproductive freedom, vigorously supported by the expert federal agency (the FDA) and now enforced by HSS regulations, trumps religious scruples.

RFRA turns the tables on the government and demands a powerful showing of policy need, and the inability to achieve that compelling goal in a less liberty-destructive way. That’s a daunting task. It’s called “strict scrutiny.” For obvious reasons, government lawyers aren’t eager to have to run that obstacle course. As an old saying goes, strict scrutiny is strict in theory but fatal in fact.

Faced with this uphill task, the Solicitor General’s brief makes the key points under strict scrutiny’s analytic framework and does so in a presentable way. Little is said, however, about the wellspring of RFRA’s controlling standard. The brief passingly cites to the fountainhead case, Sherbert v. Verner, only three times. Perhaps if you largely ignore it, it will go away.

But that’s wishful thinking. Looming over any constitutionally-based argument is what courts and lawyers call the “standard of review.” By its terms, RFRA expressly embraces the most challenging standard for the government to meet.

Unsurprisingly, the Government and its myriad supporters are looking feverishly for an exit ramp in hopes of avoiding the turbo-charged standard of stepped-up review. The government lawyers think they’ve found it in the way the Green family does business. Organized as a for-profit corporation, the vast Hobby Lobby empire extends nationwide and includes a Christian bookstore chain, Mardel. To the Obama Administration, that’s the end of the case. Why? Because, in the Government’s view, RFRA doesn’t extend its protections to for-profit corporations.

But the argument has its own statutory challenge. By its terms, RFRA applies to all “persons,” but leaves that pivotal term undefined. RFRA has a section setting out four definitions, but “person” is not among them.

Congress long ago provided for a default mechanism. It first did so in 1871 – in what is known as the Dictionary Act. The authoritative definition of “person” expressly includes a corporation, with no distinction drawn between non-profits and profits. To a textualist, the case is over.

But there is a textual wrinkle, one that the Government aggressively exploits. The Dictionary Act contains opt-out language – “unless the context suggests otherwise.” As the Solicitor General sees it, the two don’t connect, conceptually or practically.

The Hobby Lobby case may turn on this very technical debate. If the Greens can convince a barebones majority of the Court that they – five individuals carrying on a family business under the umbrella of a closely-held corporation – are directly and substantially affected in their free exercise of religion, then RFRA has to be met head on by the Solicitor General.

RFRA’s force is powerful. The statutory text renders RFRA’s power nigh unto irresistible when a government places a substantial burden on religious liberty. If exit ramps are avoided, and the Court faces square-on the language and structure of RFRA in all its might, every knee must bow at the throne of the venerable case from yesteryear, Sherbert v. Verner. That relic of the Warren Court, which lives on in 2014 by virtue of the restorative acts of a virtually unanimous 103rd Congress, represents a great source of comfort for those who believe, and who believe that Caesar has once again demanded far more than he has the rightful power to command.

This column was originally published in the National Review Online by Ken Starr, the president and chancellor of Baylor University.

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