October 21, 2015

By Erik Lampmann

The constitutional questions involved in these potential cases have their origins in the Religious Freedom Restoration Act (RFRA) and the Burwell v. Hobby Lobby decision of 2014.

While now invoked primarily by ideologues bent on limiting the implementation of same-sex marriage and reproductive rights legislation, RFRA was originally passed by a broad coalition in 1993. At the time, legislators on both sides of the aisle worried the court’s ruling in Employment Division v. Smith increased the government’s ability to infringe on individuals’ religious freedom. By passing RFRA, Congress required that government have a compelling reason to substantially burden religious beliefs and that the “requirements [it put in place] must be the least restrictive means for achieving the government’s goal.” In short, they told the federal government to ‘watch it’ when dealing with the expression of closely-held religious beliefs.

According to many on the progressive left, the court’s ruling in Burwell v. Hobby Lobby in 2014 fundamentally misapplied the themes of RFRA to an altogether different conversation.  Whereas RFRA was concerned with burdens to individuals expressing religious belief, the Court’s 5-4 decision in Hobby Lobby dealt not with the practice of religion but with religious beliefs certain adherents might hold. By making this jump, the court essentially reasoned that strong held religious beliefs could be burdened by public policy––something the authors of RFRA never addressed.

In the appellate cases now before the Supreme Court, the justices are asked to consider what limits ought to apply in their new, post-Smith realm of religious liberty litigation. Progressives are rightly concerned that, should the court rule the wrong way, the floodgates will be opened to religious adherents objecting to ‘socially liberal’ legislation requiring that they share the public sphere with individuals who prefer to use contraception, identify as LGBTQ, or hold one of a host of traditionally marginalized identities. If the court does indeed hear the case and rule in favor of religious non-profits, the same backlash which faced Indiana Governor Mike Pence after his state passed an amended state version of RFRA may well be directed toward conservatives on the court.

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