Religious Freedom Restoration Act

  • March 21, 2014

    by Nicholas Alexiou

    The Religious Freedom Restoration Act (RFRA) should not be read to provide for-profit employers the extraordinary power to block women workers from access to the most effective contraceptive methods, states an amicus brief lodged with the Supreme Court on behalf of the Guttmacher Institute and Professor Sara Rosenbaum, an expert in law and policy surrounding healthcare concerns.

    The friend-of-the-court brief authored by Dawn Johnsen, a distinguished professor at the Indiana University Maurer School of Law (and a member of the ACS Board), and includes former U.S. Solicitor General Walter Dellinger as Counsel of Record explains that the for-profit companies – an arts-and-crafts chain store and a cabinet manufacturer – have “failed to recognize the vastly different effectiveness and cost of different forms of contraception, the substantial degree to which cost determines which contraceptive methods are actually used, the health and social factors that affect a woman’s method of choice, and the resulting consequences for women’s health, family and well-being, and risk of unintended pregnancy and abortion.”

    In the brief, Johnsen and Dellinger note that cost-sharing promoted by the Affordable Care Act is critical to allowing every woman to have access to the most effective forms of contraception available. It is claimed that hormonal intrauterine devices (IUD) are “45 times more effective than oral contraceptives and 90 times more effective than male condoms in preventing pregnancy based on typical use” and that “[a]lmost one-third of American women report that they would change their contraceptive method if cost were not an issue.” However, the cost of IUDs is an overwhelming issue for many Americans as implantation can cost “a month’s salary for a woman working full time at minimum wage.”

    To rule in favor of the corporations in these cases “would deny to female employees and their insured family members vital access to the full range of contraceptive methods, inflicting financial harm and erecting obstacles to needed medical care.”

  • December 16, 2013
    Guest Post

    by Leslie C. Griffin, William S. Boyd Professor of Law at UNLV Boyd School of Law

    “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 briefing Boerne.

    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.

  • November 26, 2013
    Guest Post
    by Caroline Mala Corbin, Professor of Law, University of Miami School of Law
     
    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.”
  • November 7, 2013
    Guest Post
    by Leslie C. Griffin, William S. Boyd Professor of Law at UNLV Boyd School of Law
     
    Yet another appeals court has issued an opinion about a for-profit corporation’s challenge to the contraceptive mandate of the Affordable Care Act. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. This time, the D.C. Circuit ruled in Gilardi v. HHS that the Gilardis, two Catholic brothers who own Freshway Foods and Freshway Logistics and oppose contraception, sterilization and abortion, are entitled to a preliminary injunction because they are likely to succeed on their claim that the mandate violates their free exercise rights as well as the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” The D.C. Circuit’s action is consistent with the Tenth Circuit’s ruling that the arts-and-crafts chain Hobby Lobby demonstrated that the mandate substantially burdened its exercise of religion, but at odds with rulings against secular, for-profit companies and for the government by the Third and Sixth Circuits.
     
    One aspect of Gilardi is distinctive. Although the Third and Sixth Circuits, ruling for the government, decided that for-profit, secular corporations cannot exercise religion under either the Free Exercise Clause or RFRA, the Tenth Circuit, in support of Hobby Lobby, determined that such corporations are persons who can exercise religion under RFRA. The D.C. Circuit offered a hybrid. Although two judges – Janice Rogers Brown and A. Raymond Randolph – ruled that the Freshway Companies are not persons under either the Free Exercise Clause or RFRA, they nonetheless held that the Gilardis could bring suit because the Freshway Companies are closely held corporations with only the two brothers as owners and shareholders. In that context, the court decided, the brothers suffered a concrete and personal injury and could likely prove that their religion was substantially burdened by the mandate.
     
    The diverse circuit court rulings risk turning the contraceptive mandate issue into a debate over corporate form and institutional rights. If corporations engage in speech under the First Amendment – Citizens United – why can’t they exercise religion?
  • February 14, 2013
    Guest Post

    by Doug Kendall, founder and president, Constitutional Accountability Center. This piece is crossposted at CAC’s Text & History Blog.

    One of the glaring things revealed by a review of the briefs in Shelby County v. Holder is the dearth of serious constitutional scholars in the fray supporting the conservative attack on the Voting Rights Act. On Shelby County’s side are the predictable array of political scientists like Abigail Thernstrom, election policy hacks like Hans von Spakovsky, and Reagan-era war horses like John Eastman. But where are the leading conservative constitutional thinkers on this – Mike McConnell, Eugene Volokh, Randy Barnett, Gary Lawson, and Steve Calabresi?  None of these bright-light conservative names grace the briefs on behalf of Shelby County and, so far, their silence has been deafening in the public debate.  As University of Kentucky law professor Josh Douglas has pointed out over at PrawfsBlawg, it’s really hard to find a credible academic to provide “balance” to a panel discussion on Shelby (though Cato’s Ilya Shapiro has gamely offered to fill this void).