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Faith and Law, which serves Congressional staffers, together with the Becket Fund for Religious Liberty, presented a forum on the importance of maintaining the integrity of the Religious Freedom Restoration Act of 1993 (RFRA) on July 14 on Capitol Hill. Included were Howie Slugh of the Jewish Coalition for Religious Liberty, Sister Constance Veit of the Little Sisters of the Poor, and Doug Carver, former Chief of Chaplains of the U.S. Army.
A brief video prior to the forum reviewed the history of the RFRA, starting with the Employment Division vs. Smith decision (1990), which downgraded the importance of the free exercise of religion clause in the First Amendment. However, “America was founded on the promise that the state would protect this most sacred right.” In response, RFRA was passed with “overwhelming” support in Congress. It provides a balancing test, enabling courts to determine how important religious liberty is in a particular case. The balancing test consists of showing a substantial burden on religious liberty, which either overcomes a compelling government interest, or can be accommodated by using the least restrictive means of applying the law in question. RFRA does not grant an absolute right to religious freedom. But “a government that can crush religious liberty can crush other civil rights too.”
Daniel Blomberg, Vice President and Senior Counsel with the Becket Fund then introduced the panel, observing that people “have literally given their lives” for the right to “to worship and follow God according to the dictates of their conscience.” He said that “we have a responsibility … to carry that forward. Liberty doesn’t stand on its own; it doesn’t live on its own.” Regarding the organizations from which the panelists were drawn, he noted that the Jewish Coalition for Religious Liberty (JCRL) “shows up in more important strategic religious liberty matters” than any other organization. He said that Doug Carver “led the largest chaplaincy organization in the world,” and that Sister Constance’s organization (Little Sisters of the Poor) serves the elderly poor – people who have no one to turn to in assisting them in their old age. Blomberg observed that while the Little Sisters have “hearts of gold, they also have spines of steel.” They resisted the Obama Administration’s contraceptive mandate and had RFRA to appeal to in support of their conscience objection.
How RFRA Works
Howie Slugh of JCRL then explained how RFRA works. The Smith decision came about because American Indians in Oregon claimed the right to use illegal peyote because it was required by their religion. Supreme Court found that First Amendment “did not protect them at all because this law making peyote illegal was ‘generally applicable and religiously neutral.’” This replaced the earlier standard of strict scrutiny established in the Sherbert vs. Verner decision (1963). Where law conflicts with religious liberty, the “free exercise” clause was now held to apply only to laws that specifically targeted particular religious belief or practice. Essentially, it turned a right to religious liberty into an antidiscrimination law protecting religious belief and practice (the law cannot single out a particular religious belief or practice for legal penalty). This made protection from generally applicable law for specific religious practices or religious conscience objections into a political question, to be addressed and satisfied by legislatures. Slugh said that the text of the decision admitted that “this would hurt religious minorities the most.”
RFRA was the response to the Smith decision by Congress. It reinstated the Sherbert standard of requiring of all laws a “compelling state interest exercised in the least restrictive way” as a matter of statutory law rather than constitutional law. Religious claimants must be sincere in their beliefs. Claims to sincerity are generally accepted by courts at face value, although insincerity may be found where it seems obvious, as in the case of the “Church of the Flying Spaghetti Monster.” Claims made on the basis of hastily constructed religious beliefs to justify ignoring the law may also be found to be insincere. Courts can misjudge sincerity, Slugh observed, as when a judge declared that turning on a light bulb every day of the week could not possibly violate religious precepts. Yet Orthodox Jews indeed would consider this a violation of the command to Sabbath rest. But generally, he said, courts do accept claims to sincerity of religious belief, although “soon there will be a big fight” over claims to a religious right to abortion.
Regarding substantial burden, Slugh said that anything that prohibits one from exercising his or her faith is regarded as a substantial burden. In the HHS contraceptive/abortifacient mandate case, the Obama Administration said complicity in abortion was not a substantial burden, only direct involvement in abortion itself. But the Supreme Court rejected this argument. It said that the courts have “no business addressing” the question of how important a religious belief or practice is to religious claimants.
With respect to a compelling state interest, this involves the state showing “in a concrete way” how burdening religious liberty is essential to achieve the law’s goal. Claims that the law furthers a general interest like “health” are inadequate. Slugh noted that the government’s duty of showing a compelling state interest is much heavier than the claimant’s burden of proof in showing a substantial burden on religious exercise. Even light burdens on religious exercise are considered substantial burdens. In the Fulton vs. City of Philadelphia case (2021), which concerned a Catholic foster care agency which did not want to certify same-sex couples for foster care, the city argued that providing children only to opposite-sex married couples would reduce the number of potential foster parents. But the Supreme Court said that this was on its face false. The lack of religious foster care would make placing foster children harder. Evidence for the city’s claim was lacking.
Even establishing a compelling state interest does not in itself justify imposing a substantial burden on religious liberty. It must also be shown that the least restrictive means is being used. In the Hobby Lobby case, the court granted, for the sake of argument (although not as a holding) that a compelling state interest existed to require religious groups to provide contraceptives and abortion inducing drugs. It then found that the least restrictive means of burdening religious liberty was not being used, since including contraceptives and abortifacients was not required of many non-profits. Further, Slugh said, the burden of proof rests with the state to prove that there are no least restrictive means, not with defendants to prove that such means exist. Slugh noted that the RFRA test applies only to federal law. State law continues to be bound only by the loose Smith standard of targeting religious belief, and this has occasioned the passage of many state RFRAs to provide similar protection in state law as exists for federal law. If there is no state RFRA, the Smith test is the only First Amendment protection available for religious claims against state or local law.
How RFRA worked in a Crucial Case
Sister Constance Veit then talked about the use of RFRA in the Little Sisters of the Poor case, formally known as Zubick vs. Burwell. She said the Little Sisters normally live as far from the public eye as possible. But this case put them in the public eye. The case dealt with the conscience objection of the Little Sisters and other religious non-profits to the HHS contraceptive mandate, which required them to cover contraceptives and abortifacients (abortion inducing drugs) in their health insurance programs for all their employees of any religion.
The problem was that this requirement was “in direct conflict with Catholic teaching.” She said that the mandate “touched on respect for the inviolable dignity of human life,” which is a firm principle of Catholic teaching. The fine for not complying with the mandate would have been “up to $70 million annually.” She said that the Little Sisters noted in their case that many corporations were “grandfathered” so that they did not have to provide contraceptive coverage, and that indeed one third of Americans do not have employer-based contraceptive coverage but have to look to other ways of obtaining contraceptives or abortifacients. Also, “military family plans did not include contraceptive services.”
It was thus implausible that there could be a compelling case for requiring religious organizations employing a comparatively small part of the public to provide contraceptive coverage in violation of their consciences. The statement of objection HHS had prepared for religious organizations “was not really an opt-out, but an authorization” for the religious organizations to provide objectionable coverage. The government also had to admit in oral arguments that the many uncovered Americans could easily obtain contraceptives and abortifacients. Upholding religious organizations’ right to decline coverage helped achieve the objective of President Bill Clinton when he signed RFRA in 1993 “to honor the principle that our laws and institutions should not impede or hinder, but rather protect and preserve fundamental religious liberty.”
Blomberg observed that Associate Justice Sotomayor staid the fine against the Little Sisters hours before it was to take effect, thus averting a crisis before the case was heard. He said that now the Biden Administration has admitted that it does not need the Little Sisters to provide contraceptive/abortifacient coverage in their health insurance policies. A new federal regulation leaves the Little Sisters unaffected.
Religious Freedom in the Military
Doug Carver then discussed the importance of RFRA for the military. He observed that religious faith has always been important to soldiers. Servicemen’s identity tags (sometimes called “dog tags”) are imprinted with their name, Social Security number, blood type, and religion. He said all four items are important during the course of service in the military, and that a soldier’s religion must be “known, understood, honored and respected” during the course of this service. Far from detracting from the unity of a military group, freely exercised religious faith “can serve to strengthen” the “unit’s morale and cohesion.”
He said that RFRA has been important in the cases of hundreds of soldiers, enabling them to serve their country and achieve military objectives without abandoning their faith. RFRA has been used to defend military chaplains in their expression of issues related to human sexuality. It has been used to protect religious minorities against requirements conflicting with their faith, and to protect against a requirement of coronavirus vaccinations in the military. It has also been used to require that Catholic chaplains be allowed to “obey their ecclesial authorities” and read a pastoral letter regarding opposition to the contraceptive/abortifacient mandate, in contravention of a lawful order not to read the letter. He said that RFRA generally is helpful in obeying the Biblical principle, annunciated in Acts chapter 5, that Christians must “obey God versus the institutional mandate.”
Carver observed that George Washington maintained that “the greatest resource the military could provide” its soldiers was the time made “available for them to have weekly worship, and access to a religious leader” who will enable them, in Washington’s words, “to pursue the substance of godliness in the performance of their duties, so that they would be better citizens.”
Military chaplains today represent “over 225 faith groups, [who] have faithfully performed, provided, or facilitated religious services” for military personnel. “They have educated and advised military leadership on First Amendment and religious accommodation issues.” They strongly advocate “religious freedom and religious conscience.” Because there are now roughly 4,000 religious groups, “RFRA has never been more important than right now” to the military. He said that there seems to be a “suspicion” by some regarding the “individual free exercise of religion and conscience while serving as a member of the armed services.” Attenuating the protections of the federal RFRA, which is now a real danger, will lead to more conflict between military duties and religious precepts. Quoting Os Guiness, Carver said that how we respect religious liberty “will be the real defining point for the future of our nation and humanity.”
RFRA’s Importance
Bloomberg, in summarizing, again emphasized that RFRA “is very important to people of all faiths.” It is a balancing test, not a guarantee that religious groups will always win. It requires the state to justify requiring citizens to violate their religious obligations. He noted that RFRA had “broad, bipartisan support, passed with unanimous consent of the House, and overwhelmingly in the Senate.” He maintained that RFRA “is not a partisan issue.” When religious liberty loses, it harms “all faiths.” Bloomberg said that there was “a big fight” involving carving out exceptions to RFRA when it was passed, and the same demand for attenuation “is a big problem now.” He said that “we are increasingly seeing efforts by members of Congress to pass bills that have language that carves out RFRA” from the operation of other laws. He said that such carve outs are “a poison pill” for religious liberty (presumably because it devalues religious liberty, and also stimulates demands for more carve-outs, or devalues religious liberty in litigation).
A questioner asked for an example of how RFRA benefits soldiers. Carver responded that “one of the greatest benefits is that they have unit chaplains.” It also gives an opportunity to explain to the members of the military the importance of religious liberty. Religious liberty is important to military personnel “regardless of what they believe, or what they don’t believe.”
The panel discussion ended with an exhortation to pray for those lawyers and individual parties to cases who are fighting for religious freedom. John Palfoutas, founder of Faith and Law concluded by saying that “if ever there were a scheme of the Devil that’s going on this country, it’s the attack on religious freedom.” Even the freedom of non-religious citizens “is so tied up to our freedom.” Without religious freedom, it is a “short step” to the loss of other freedoms. This writer would add, that religious freedom is itself the most important freedom, because it protects our right in human law to obey God.
