Like many residents of the Town of Greece, New York, Susan Galloway and Linda Stephens regularly attended the Town Board’s monthly meetings, where votes would be held on proposed ordinances, residents’ input would be solicited and public business would be conducted. Historically, the Town Board began each meeting with a moment of silence, a practice that was replaced by a prayer in 1999. In 2007, Galloway and Stephens complained that the prayers “aligned the town with Christianity” and “were sectarian rather than secular.” In response, the Town scheduled three non-Christians to deliver prayers at a third of the Board meetings in 2008, the year in which Galloway and Stephens filed a lawsuit against the Town. But in the following eighteen months, only Christian clergy delivered the prayer.
Galloway and Stephens’ lawsuit alleges that the Town violated the Constitution’s Establishment Clause in two ways: (1) its procedure for selecting prayer-givers unconstitutionally “prefer[red] Christianity over other faiths,” and (2) it allowed individual citizens to deliver “sectarian” prayers. To engage with this argument, ACS Student Chapters have held events on Town of Greece v. Galloway, which was heard before the Court last month. Gregory Lipper, Senior Litigation Counsel at Americans United for Separation of Church and State, spoke with the Georgetown ACS Student Chapter about the case. “You certainly do not need to be the Pope to know that that is a Christian prayer,” he said, when describing how explicit the opening prayers were at the Town’s meetings.
Addressing the law students, Lipper explained that the Town-appointed chaplain of the month often asked the meetings’ attendees for some form of participation in the prayer, such as bowing their heads, standing, or responding “Amen” as members of the Board stood behind him. As a result, individuals often felt that noncompliance would alienate the Board, the body they had yet to address with their request or case. Lipper claimed that the prayers were not only denominational but also coercive, effectively requiring meeting attendees to participate or risk losing government and/or social support. “Because citizens are there to petition their government, it is especially important that these meetings be inclusive,” he added. “This is where the Town has fallen woefully short.”
“In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a ‘law respecting an establishment of religion’ that violates the First Amendment to the Constitution,” wrote Justice John Paul Stevens in City of Boerne v. Flores, the 1997 case that invalidated RFRA for state governments. RFRA still prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” Congress drafted RFRA to express its dissatisfaction with the Supreme Court’s important ruling in Employment Division v. Smith that all citizens must obey neutral laws. Smith rejected the argument that religious citizens are constitutionally entitled to disobey the law. In contrast, “RFRA establishes an across-the-board scheme that deliberately singles out religious practices, en masse, as a congressionally favored class of activity,” as Cardozo law professor Marci Hamilton argued in briefingBoerne.
Justice Stevens and Professor Hamilton were right. The most fundamental Establishment Clause rule is that the government may not prefer religion over irreligion or non-religion. RFRA, however, “privileges religion over all other expressions of conscience.” Unfortunately, in 1997 only Stevens and Hamilton recognized the establishment problems with RFRA, which continues to bind the federal government.
Those problems were confirmed by the Tenth Circuit’s decision in Hobby Lobby, which exempted the large arts and crafts chain store from the contraceptive mandate of the Affordable Care Act without mentioning the Establishment Clause. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Because Hobby Lobby’s Christian owners believe that contraception causes the death of a human embryo, they want to deny contraceptive insurance to their employees. The Tenth Circuit ruled that RFRA grants the employers that right.
Most discussions of whether Hobby Lobby and Conestoga Wood are protected by the Religious Freedom Restoration Act (RFRA) as corporations have focused on their for-profit character. This is something of a red herring; for-profit character matters, but not in the way most people think. As law professors Micah Schwartzman, Richard Schragger and Nelson Tebbe have pointed out (see here and here), what disqualifies a corporation from RFRA protection is as much its size as its for-profit character.
The corporate plaintiffs in Hobby Lobby, for example, insist that they “believe” and “practice” the religion of their owners because they are “family businesses” and “closely held” corporations that have very few shareholders. This self-description evokes the stereotypical image of the small-town “mom-and-pop” grocery store, staffed mostly by an extended family whose members greet everyone by name and whose customers, suppliers and other employees uniformly identify as the “real” owners irrespective of legal formalities.
Federal laws are frequently sensitive to the needs of such genuinely small businesses. For example, Title VII of the Civil Rights Act exempts businesses with fewer than 15 employees, and the Fair Housing Act similarly does not apply to small apartment complexes where the owner resides on the premises. The ACA itself exempts businesses with fewer than 50 employees from the employer mandate to provide employee healthcare insurance.
The corporations here are light years away from the “mom-and-pop” stereotype. Hobby Lobby and its affiliates employ 13,400 people in 600 locations scattered through 39 states (including a 3.4 million square foot headquarters complex). Forbesestimates its annual revenue at substantially more than $2 billion.
Last week the U.S. Supreme Court agreed to review two lower court decisions involving for-profit businesses seeking religious exemptions from the Affordable Care Act’s so-called “contraception mandate.” The mandate requires that employer healthcare plans cover all FDA-approved contraception without “cost-sharing”—that is, without a copayment or other out-of-pocket patient expense beyond the monthly plan premium. Churches and other “houses of worship” are fully exempt from the mandate, and there is a regulatory accommodation for religious nonprofits like religiously affiliated colleges and hospitals, which excuses them from complying with the mandate so long as they certify that compliance violates the tenets of their affiliated religion.
For-profit employers whose religious beliefs condemn the use of some or all of the mandated contraceptives have challenged the mandate under the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from imposing a “substantial burden” on a person’s religious practices unless it is pursuing an exceptionally important goal that it cannot accomplish in another way. These employers are claiming that RFRA grants them the same kind of exemption as has been granted to churches, synagogues, and other religious congregations, even though they are unambiguously secular enterprises like craft stores, auto parts manufacturers, construction companies, and medical supply businesses. (I examined the weaknesses in these cases in an ACS Issue Brief last fall).
One of the mandate decisions the Court will review, Hobby Lobby Stores, Inc. v. Sebelius(10th Cir. June 27, 2013), decided that a for-profit corporation that operates a nation-wide chain of craft stores is a “person” who “exercises religion” under RFRA and thus is entitled to its protections. The other decision, Conestoga Wood Specialties Corporation v. Sebelius(3rd Cir. July 26, 2013) went the other way, finding that a for-profit corporation that operates a cabinet-making business is not protected by RFRA, and additionally holding that the mandate does not violate free exercise rights protected by the First Amendment.
The D.C. Circuit’s recent decision addressing the contraception mandate – Gilardi v. United States Department of Health and Human Services – got some things right but many more things wrong. The contraception mandate is the Affordable Care Act’s requirement that health care plans, now mandatory for large employers, include all FDA-approved contraception without any cost sharing by employees.
Francis and Philip Gilardi own and manage Freshway Foods and Freshway Logistics, fresh food processing and delivery companies. The brothers are religiously opposed to contraception and argued that the mandate violates their corporations’ and their own religious rights under the Religious Freedom Restoration Act (RFRA). Under RFRA, “persons” are entitled to exemptions from federal laws that impose a substantial burden on their religious conscience unless the challenged law passes strict scrutiny. A divided panel of the D.C. Circuit held that the brothers were entitled to an exemption from the mandate under RFRA.
What the Gilardi Court got right. The Gilardi Court held that secular corporations are not “persons” capable of religious exercise and therefore cannot bring a RFRA claim. Because RFRA draws from Free Exercise Clause jurisprudence, the D.C. Circuit took the occasion to examine whether corporations had free exercise rights. It rejected such a notion, observing that the Supreme Court has never extended free exercise protection to secular corporations and “has expressed strong doubts about the proposition.” “When it comes to the free exercise of religion . . . the [Supreme] Court has only indicated that people and churches worship.”