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What is RFRA and why do we care?

June 30, 2014 by Scott Bomboy


One of the key components of today’s Supreme Court Hobby Lobby decision is the Religious Freedom Restoration Act, or RFRA. But what is RFRA and how does it apply to cases involving Obamacare and discrimination against same-sex couples?


The Supreme Court
The Supreme Court


The federal version of the Religious Freedom Restoration Act dates back to 1993, when it was passed by Congress after a controversial Supreme Court decision in 1990 angered liberals and conservatives. But after Congress passed RFRA, the Supreme Court ruled in 1997 that the Act couldn’t be applied to states.


UPDATE: Supreme Court rules in Hobby Lobby case


Currently, at least 22 states have their own versions of RFRA laws, as a response to the 1997 Supreme Court decision.


Here is the back story: In Employment Division v. Smith (1990), two American Indians who worked as private drug rehab counselors ingested peyote as part of religious ceremonies conducted by the Native American Church, and they were subsequently fired. The U.S. Supreme Court upheld the firing, with Justice Antonin Scalia saying that using a religious exemption in conflict of a valid law “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”


A near unanimous Congress passed RFRA in 1993 and President Bill Clinton signed the law. RFRA said that “governments should not substantially burden religious exercise without compelling justification” and “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”


The compelling interest test dated back to another Supreme Court decision, Sherbert v. Verner, from 1963. The Sherbert test said that if a person claimed a sincere religious belief, and a government action placed a substantial burden on that belief, the government needed to prove a compelling state interest, and that it pursued that action in the least burdensome way.


But after Congress passed RFRA, the Supreme Court ruled in 1997 that the Act couldn’t be applied to states. In the City of Boerne v. Flores case, a majority led by Justice Anthony Kennedy found that Congress had exceeded its constitutional powers by enacting RFRA, because Congress couldn’t determine the way in which states could enforce RFRA’s restrictions.


So two current Justices, Scalia and Kennedy, are key players in the RFRA debate. But in Monday's Hobby Lobby decision, it was two different  different Justices, Alito and Ginsburg, who dominated the opinion.


In addition to the Hobby Lobby case, RFRA was at the center of a controversy in Arizona and New Mexico over the rights of same-sex couples.


Republican lawmakers in Arizona in February 2014 had decided to pass a state RFRA law that potentially legalized discrimination against gays by businesses that sold goods and services, but Governor Jan Brewer vetoed the law, after a national debate.


The Arizona legislature acted after a court in neighboring New Mexico in 2013 decided that a photographer who refused to document a same-sex couple’s commitment ceremony had violated New Mexico’s public accommodations laws. RFRA was also involved in that case, which was declined by the Supreme Court.


In the Hobby Lobby and Conestoga Wood combined case in front of the Supreme Court, RFRA was involved in the Conestoga Wood part of the decision.


In Hobby Lobby Stores v. Burwell, Hobby Lobby, a craft store chain, and its sister company, Mardel Christian bookstore, want an exemption from an Obamacare requirement that it provide insurance coverage for morning-after pills and similar emergency birth control methods and devices.


In Conestoga Wood Specialties Corp. v. Health and Human Services Department. Conestoga is a Mennonite family-owned, profit-making business, and it claims that the ACA’s birth control mandate violates the company’s rights under the First Amendment and the federal Religious Freedom Restoration Act (RFRA).


One important point was if the Supreme Court would give profit-making corporations a constitutional right under RFRA to an exemption from laws that must be obeyed by everyone in the general public. In its decision, the Court limited this right to closely held corporations.


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