Reading Hobby Lobby in Context

To grasp the full implications of the Supreme Court’s Hobby Lobby decision, it helps to read it not in isolation but alongside the court’s other major religion case of the term, Town of Greece v. Galloway. Issued eight weeks before Hobby Lobby and decided by the same 5 to 4 division, Town of Greece rejected a challenge to a town board’s practice of beginning its public sessions with a Christian prayer. A federal appeals court found the practice unconstitutional, concluding that it violated the First Amendment’s Establishment Clause by conveying an official endorsement of one particular religion.

In his controlling opinion overturning that ruling, Justice Anthony M. Kennedy brushed past the complaint raised by the two non-Christian plaintiffs who said that having to endure a Christian religious observance whenever they showed up to conduct business with the town board made them feel excluded from the community and diminished as citizens. “Adults often encounter speech they find disagreeable,” Justice Kennedy wrote, adding that after all, there was no attempt at coercion or intimidation. “Legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate,” he said.

Compare this breezy dismissal of a complaint by two actual people to the extreme solicitude five members of the court displayed two months later toward Hobby Lobby Stores, Inc., a multibillion-dollar corporation with 13,000 employees in some 500 locations. Given the undisputed sincerity of the religious beliefs of Hobby Lobby’s Evangelical Christian owners, the company couldn’t be required to comply with the mandate to include contraception coverage in its employee health plan, according to the majority opinion by Justice Samuel A. Alito Jr.

Granted, these two decisions, Town of Greece and Hobby Lobby, aren’t in direct conflict as a doctrinal matter. The First Amendment deals with religion in a single sentence with two separate clauses: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Each clause, Establishment and Free Exercise, has generated its own body of law. Town of Greece arose under the Establishment Clause. Hobby Lobby challenged the Affordable Care Act’s contraception mandate not directly under the Free Exercise Clause, but under the Religious Freedom Restoration Act, a law Congress enacted in 1993 to respond to a Supreme Court decision that Congress thought had interpreted the Free Exercise guarantee too narrowly. So this was, at heart although not as a formal matter, a Free Exercise claim.

Take a step back from the boundaries of formal doctrine, however, and the moves the Roberts court is making across the religious landscape as a whole come into view. The Establishment Clause — which brought us the schoolprayer decisions of the 1960s, the 1992 decision barring clergy-led prayer at public high school graduations, and as recently as 2000, a 6-to-3 decisionbarring student-led prayer at high school football games — is being systematically effaced. After Town of Greece, it’s hard to think of an Establishment Clause claim that would prevail in today’s Supreme Court.

And at the same time, the Free Exercise side of the First Amendment ledger is robust and emboldened. That statement necessarily comes with a caveat: it was the Religious Freedom Restoration Act, not the Free Exercise Clause itself, that gave Hobby Lobby its winning ticket. Hobby Lobby would have lost its case under the unadorned Free Exercise Clause, as interpreted by the Supreme Court in a 1990 decision, Employment Division v. Smith, which held that a generally applicable law would not be construed as providing an exemption for religious claims unless it had been passed to single out religion for particular disfavor.

The most significant doctrinal distinction between the majority and Justice Ruth Bader Ginsburg’s dissenting opinion in Hobby Lobby lay in how to interpret the Religious Freedom Restoration Act. Indisputably, Congress passed the law to overturn the Smith decision, which said that there was no religious exemption from a general law that prohibited drug use. The word “restoration” in the law’s name implies that Congress meant to return the Free Exercise Clause to its pre-Smith condition — namely, as expressed in Supreme Court decisions from the 1960s and 1970s on the rights of religiously observant employees, that a law that imposed a substantial burden on the practice of religion had to be justified as serving a compelling government interest. But did the 1993 law go beyond restoration?

Justice Ginsburg argued that “as RFRA’s statements of purpose and legislative history make clear, Congress intended only to restore, not to scrap or alter, the balancing test as this court had applied it pre-Smith.” Yet, she argued, extending the free-exercise right beyond churches and individuals to for-profit corporations, as the majority was interpreting the law, went beyond anything the court had ever held.

“Indeed,” she said, “until today, religious exemptions had never been extended to any entity operating in the commercial, profit-making world.” She added: “The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations.” (Justices Stephen G. Breyer and Elena Kagan didn’t join this portion of Justice Ginsburg’s dissenting opinion, writing in a separate dissenting opinion that it wasn’t necessary to decide whether RFRA applied to corporations because Hobby Lobby should lose its case in any event.)

In several places in his majority opinion, Justice Alito contended that Congress meant to do more than simply “restore” — that it “provided even broader protection for religious liberty than was available” under the court’s earlier decisions. The statute’s reference to the “exercise of religion under the First Amendment,” he maintained at another point, meant something more than “the exercise of religion as recognized only by then-existing Supreme Court precedents.”

Something more, but exactly how much more — what general laws or specific entitlements can religious claims now trump — is a question left hanging by the Hobby Lobby decision. The court is likely to be asked in the foreseeable future to apply its analysis to the rights of gay men and lesbians under anti-discrimination laws. While the majority is conspicuously silent on the gay rights question, it offers assurance that because the government’s interest in preventing racial discrimination is “compelling,” the court won’t permit the decision to be used as a “shield” to permit racial discrimination in employment to be “cloaked as religious practice to escape legal sanction.”

The ultimate import of the decision may depend on Justice Anthony M. Kennedy’s willingness to go along in future cases. While signing Justice Alito’s opinion, thus providing a fifth vote, Justice Kennedy also filed a brief concurring opinion of his own that seem intended to underscore how easily, in his view, the government in this particular case could fix the Hobby Lobby problem simply by offering the company the same accommodation that the Obama administration has offered to religious nonprofits. It’s also possible that Justice Kennedy extracted some measure of compromise from Justice Alito as the price for his signature, most likely the reassuring nondiscrimination language tacked on somewhat awkwardly at the end of the majority opinion.

To whatever extent the Religious Freedom Restoration Act has enlarged the meaning of the Free Exercise Clause, it’s worth taking another step back to place that move in wider context. Religion is not the only constitutional subject that exists under what might be called a statutory overhang — a congressional enactment that extends constitutional protection further than the Constitution itself.

The area of racial discrimination offers the prime example. Under the Supreme Court’s interpretation of the 14th Amendment, the guarantee of equal protection is violated only by intentional discrimination, and not simply by government action that has the effect of placing one race at a disadvantage. But at the same time, the court has interpreted Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, sex, and religion, more protectively to apply to actions that have a “disparate impact,” without the need to prove intentional discrimination. Likewise, the Voting Rights Act of 1965, invoking Congress’s authority under the 15th Amendment to protect the right of black citizens to vote, established an enforcement mechanism that went beyond the express terms of the Constitution.

But note how vulnerable the statutory overhangs in the areas of employment discrimination and voting have become under the skeptical eye of the Roberts court. The court has already disabled a central feature of the Voting Rights Act, in last year’s Shelby County decision. And the court has been actively searching for a case to use as a vehicle for rejecting the disparate-impact theory of discrimination. Parties in two such cases in recent terms settled out of court after the justices had granted review, so obvious is the majority’s agenda and so devastating, from the civil rights perspective, the likely outcome.

The vitality of the statutory overhang that protects religious claims to free exercise is striking by contrast. The Hobby Lobby decision interprets the statutory protection even more generously than Congress itself does, as a brief cited by Justice Ginsburg demonstrates. The brief, filed by members of Congress who voted both for the Religious Freedom Restoration Act and the Affordable Care Act, argues that Congress never expected the 1993 law to apply to a Hobby Lobby situation.

So the question now is how much further, and in what contexts, the majority will extend the protective overhang. The docket for the court’s next term offers one opportunity for an answer. In a case brought under a companion statute to the Religious Freedom Restoration Act called the Religious Land Use and Institutionalized Persons Act (Rluipa, pronounced re-loop-a), the court has agreed to hear a Muslim prisoner’s appeal seeking the right to grow a beard for religious reasons in an Arkansas “super max” prison with a grooming policy that prohibits facial hair. The case is Holt v. Hobbs.

The inmate, Gregory Holt, also known as Abdul Maalik Muhammad, filed his own Supreme Court petition last fall in hand-written form but soon acquired a powerful legal team, including some of the same lawyers involved in the Hobby Lobby litigation. Given the more than a dozen briefs filed on his behalf, it’s clear that this case has been identified as a next front in the battle to expand the right to religious exercise.

When I first encountered this case, I thought it would present a tough test for the court’s majority. For one thing, a beard is not required of Muslim men by formal religious doctrine; it’s a traditional practice that the inmate chooses to observe. For another, the court for years has been highly deferential to prison administrators whenever they offer even a superficially plausible reason for a regulation.

But on second thought, I realized that this was an irresistibly easy case for the court, a gift, in fact. Arkansas is an outlier; 39 state prison systems allow religiously motivated inmates to wear beards. So does the federal prison system. The Obama administration has entered the case on the inmate’s side. What better way for the justices to allay suspicions that they are only interested in the free-exercise rights of Christians than to rule in favor of an imprisoned Muslim?

After all, as Justice Kennedy observed in his concurring Hobby Lobby opinion, ” ‘The American community is today, as it long has been, a rich mosaic of religious faiths.’ ” While that may seem a statement of the obvious, there was something odd about it in the context in which it appeared. It was in quotation marks. The quotation was from an opinion by Justice Kagan — dissenting from Justice Kennedy’s opinion upholding the Christian prayers in Town of Greece.