Why the Religious Freedom Restoration Act matters to you

Washington D.C., Feb 17, 2015 / 17:20 pm

For the sake of religious liberity, it is vital that the religious rights of corporations – and not just individuals and churches – be upheld under federal law, a legal scholar has said.

"Most Americans, faithful Americans, they bring their religious commitment into all aspects of their life, including the workplace," Gregory Baylor, a senior counsel with Alliance Defending Freedom, told CNA after a Feb. 13 congressional hearing on the Religious Freedom Restoration Act (RFRA).

"We have Christian families, other folks, who own businesses and they want to operate their businesses in accordance with their religious principles," he added.

"And the position of the government in these cases, and in today's hearing, at least with respect to some of these representatives, is that your faith life is sort of within the four walls of the church, and that's where it needs to stay."

Baylor testified before the House Judiciary Committee on Feb. 13 about "oversight of the  Religious Freedom Restoration Act."

The act, passed overwhelmingly by Congress and signed into law by President Clinton in 1993, was a reaction to a Supreme Court ruling that the government did not have to prove a compelling interest in substantially burdening one's exercise of religion.

The act established that if a law places a "substantial burden" on a person's exercise of religion, the burden of proof falls on the government to prove a "compelling interest" for the law, and that it is using the "least restrictive means" of action to pursue its interest.

The act certainly upholds the religious freedom of "entities like Catholic Charities, and Catholic University of America, and K-12 parochial schools," Baylor said, adding that most, if not all, of those entities are "incorporated."

"So you can't say that corporations don't have rights," he continued.

At hand is the argument – exemplified in the Supreme Court's ruling in Hobby Lobby v. Burwell – of whether a business or organization must cover items in employee health plans against its religious or ethical beliefs.

The Supreme Court ruled that as a family-run closely-held corporation, craft chain Hobby Lobby met the religious exemption under RFRA and did not have to cover items it considered abortifacients in employee health plans. The court said that the government did not employ the "least restrictive means" of forcing Hobby Lobby to do so.

Professor Nelson Tebbe of Brooklyn Law School said that Congress should amend RFRA. When a religious exemption for a business such as Hobby Lobby places significant costs on a third party – in this case, the employees who must pay for their own birth control and abortion-inducing drugs – the business must meet that need.

"These thousands of people have suffered harm that may well be irreparable," Tebbe said of employees who have gone without coverage for their birth control.

When Rep. Ron DeSantis (R-Fla.) asked Tebbe if this argument applied to religiously-affiliated organizations such as Catholic Charities having to cover late-term abortions, Tebbe said he was "reluctant" to answer that but that, using another example, Catholic Charities should have to provide adoption services to all couples, including same-sex couples.

Baylor said that argument meant that an organization with a religious mission, such as EWTN, would have to cover late-term abortions for its employees.

"It's commercial, but clearly they [EWTN] have a religious mission at its core. Would that analysis mean that EWTN would have to provide late-term abortion coverage, which is obviously something that people participating running that organization very much would disagree with?" DeSantis asked Baylor.

"I think it does, and that's very disturbing about some of these arguments that are being made about Hobby Lobby," Baylor answered, "is that we tend to think it's about contraceptives and actually the objection that was made by Hobby Lobby…is that they don't want to facilitate access to abortion."

Such a case is a reality and "not hypothetical," he continued, pointing to laws in Washington, D.C. and California mandating that all employers – even Catholic schools and dioceses – cover elective abortions for employees.

The Reproductive Non-Discrimination Act of 2014 passed the D.C. city council and was signed into law by Mayor Muriel Bowser in January. It mandated that employers could not hire or fire employees based on their reproductive health decisions, even if those decisions flatly contradicted the mission of the organization – such as a Catholic or pro-life organization.

Critics also said the bill forced employers to cover birth control and abortions in employee health plans. To clarify that it did not, Bowser introduced legislation after she signed the bill saying it did not apply to insurance plans but just employment decisions.

RFRA was understood from the beginning to apply to corporations and not just individuals, Baylor argued.

"It was understood at the time RFRA was passed, that it included not just non-profit religious corporations, but it included all corporations. This was non-controversial," Baylor told CNA.

Cases where a massive corporation would invoke religious freedom protections are so rare they're almost hypothetical, he added.

"To be sure, for-profit, publicly-traded big companies, many of them, all of them I would hope, try to behave ethically. But I think it's fairly rare for a corporation on the scale of IBM or General Motors to try to bring specific religious principles into the operation of their businesses."

Despite the congressional threat to religious rights of corporations – for instance, the Senate's attempt last summer to overturn the religious exemption for employers like Hobby Lobby in cases about coverage of birth control – threats from the judiciary are far greater, Baylor explained.

"We've seen that in some of the bad outcomes in HHS mandate cases that have been brought by religious non-profits where judges are denying that these entities are substantially burdened when the government makes them facilitate access to drugs and devices and services in violation of their religious consciences."

Though critics might argue that interpretations of RFRA can restrain the civil liberties of employees, Baylor added that it protects the greatest civil liberty – the free exercise of religion.

"I think for example when a religious employer, a religiously-motivated family business refuses to provide abortion pills and pay for abortion pills to its employees, it's not violating anybody's civil liberties. It's just not the case that people have a fundamental, inherent, human right to get free abortion pills paid for by their employer," he explained.

However, the law doesn't always uphold the religious rights of organizations, he added.

"RFRA doesn't dictate outcomes, it doesn't say that religion always wins and other interests can be ignored. RFRA specifically orders the courts to assess whether the government is pursuing an important interest. And one of those interests might be a civil liberty of a third party. And courts are already empowered to take those interests into account when they make their decisions."

"That's why these calls to amend RFRA are perplexing, because RFRA already contemplates that interests will be balanced against each other," he continued.