Constitution Check: Is the Religious Freedom Restoration Act unconstitutional?

THE STATEMENT AT ISSUE:

“The Religious Freedom Restoration Act is unconstitutional….RFRA’s legislative history supports reading it as a takeover of [the Supreme] Court’s power to interpret the Constitution….To say that RFRA is not in fact an attempt to overrule this Court’s constitutional interpretation is to engage in high-level intellectual gymnastics divorced from its text, history, and fundamental common sense.  If it were constitutional, RFRA is a formula that would make it possible for Congress to meddle with any constitutional doctrine and decision, and move the Court to the sidelines as political winds shift constitutional standards by simple majority votes.”

 – Marci A. Hamilton, a constitutional law professor at the Benjamin Cardozo School of Law, in a brief filed on Tuesday at the Supreme Court on behalf of seven organizations seeking the nullification of the 1993 law, the Religious Freedom Restoration Act.  The brief was filed in two pending cases in which the Court is reviewing religious challenges to a part of the federal Affordable Care Act.

WE CHECKED THE CONSTITUTION, AND…

America has always been, from the very Founding, somewhat ambivalent about religion and worship as constitutional matters.  While insisting that government and religion must not be joined or even closely allied, it has nurtured a very wide array of religious beliefs and practices, and it has allowed religious views to permeate its popular politics.  Periodically, it sees a revival of religion’s influence, and almost always, the result is quite divisive.

The Supreme Court has had its own part in that ambivalent attitude about religion.  Even today, it remains unsure how the First Amendment’s Establishment Clause (maintaining the separation of church and state) can coexist comfortably with the same Amendment’s Free Exercise Clause (protecting private choice in matters of faith).  How far can the government go to enable the free exercise of religion without becoming, in effect and even in reality, its official partner or sponsor? How much toleration becomes endorsement?

Those questions have been raised over and over again, about the Religious Freedom Restoration Act, since Congress passed that law in 1993 with the explicit aim of overruling a Supreme Court decision three years earlier.  In its 1990 decision in Employment Division v. Smith, the Court upheld the power of government at all levels to pass laws that everyone had to obey, even if those laws imposed a burden on the specific religious practice of one sect.   Such general laws, the court concluded, did not violate that sect’s constitutional right to freely express  its faith.
The Smith decision caused a political uproar, challenged widely as a major threat to religious liberty.  Congress passed RFRA to overrule the decision, fashioning its own notions of what would be unconstitutional in general laws that impacted faith practices.
But that very direct form of constitutional expression promptly stirred up some fundamental new issues.  Was RFRA a law that changed constitutional law from what the Supreme Court had said it meant, doing so by a simple enactment rather than a constitutional amendment, or was it merely a mandate on how to interpret the scope of laws that impact religious practice, and thus well within Congress’s power to legislate public policy norms?  Did it go too far to protect specific religious practices, thus crossing the line into endorsement?

The Supreme Court has never answered those questions in cases in which RFRA applied to a federal law – that is, one passed by Congress.  The constitutionality of RFRA, indeed, does  not arise often in court cases.  As Justice Antonin Scalia once remarked: “Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice?”

Even so, RFRA’s constitutionality did get challenged, in a case involving a local law, not a federal law, and the Court struck it down in that situation.  In the 1997 decision in City of Boerne v. Flores, the court ruled that Congress did not have authority under the Fourteenth Amendment to impose RFRA’s strict standard of protection against state or local laws that were challenged as too burdensome on religion practices.

Although that decision was based primarily upon the court’s view that that law intruded upon the legislative power of states, the court’s main opinion contained a number of ominous comments about Congress’s obligation not to intrude upon the court’s powers, and about efforts to change constitutional law as decided by the court without doing so by formal constitutional amendment.   (One of the Justices then on the court, John Paul Stevens, wrote in a separate opinion that he thought RFRA as a whole was unconstitutional, under the Establishment Clause.)

RFRA, though, remained on the books as a restriction on federal laws challenged by those who felt burdens on their religious faith.   And, now, what is very likely the most significant case in the Court’s history on RFRA’s application to federal laws is unfolding in the Court this term.  And, while the constitutionality of RFRA has not been raised by either side in the case, it has been raised in a separate, friend-of-the-court brief by a coalition of advocacy groups, several of which were organized after the revelation of the child abuse scandals by priests or other faith counselors.

Two combined appeals are tests of the government’s power to enforce the federal Affordable Care Act’s so-called “contraceptive mandate,” requiring employers to provide coverage for pregnancy-related services, including birth-control pills.   The appeals emerged out of scores of cases filed across the country by religiously devout business owners, or by religious colleges and charities.  The cases before the Court involve, at this point, only claims to RFRA protection by profit-making companies with Roman Catholic owners.

In the advocacy groups’ brief urging the court to decide the case by striking down RFRA altogether, the document contended that the law is a form of establishment of religion, is an attempt to revise constitutional law without pursuing a formal amendment, and is an invalid intrusion into the authority of the Supreme Court to interpret the Constitution.

This argument has arisen late in the cycle for written arguments, so it is unclear whether the Court will ultimately reach that argument, and even whether the federal government and the private businesses involved in the pending cases will respond to it.  The Court need not deal with it at all, but, if it does, it would be a daring use of judicial power to nullify the law.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.