Today marks the one-year anniversary of the Supreme Court’s landmark ruling in Burwell v. Hobby Lobby, Inc. The Court ruled that “closely held” for-profit corporations—typically smaller family-owned corporations— could be exempt from certain federal laws if those laws conflicted with the religious beliefs of their owners, as long as a less restrictive means of furthering the law’s interest was available. The Court did not rule on this case under the First Amendment’s Free Exercise Clause, but instead ruled based on an interpretation of the Religious Freedom Restoration Act (RFRA).
The case came about when the owners of Hobby Lobby objected, due to their religious beliefs, to providing specific contraceptives to their female employees, namely Plan B and intrauterine devices (IUDs), as required by a mandate within the Affordable Care Act (ACA). The Court ruled 5-4 in favor of Hobby Lobby, striking down the mandate on grounds that it was not the “least restrictive” means of furthering the government’s interest. The RFRA requires that, when religious beliefs are involved, the courts apply a strict scrutiny test to a contested law requiring it to be the least restrictive method of furthering the government’s interest.
Four Justices dissented in this case, arguing against giving for-profit corporations the right to exempt themselves from a “generally applicable law.” They contrasted these for-profit corporations with religious nonprofit organizations, which had already been exempt from that provision, noting that while religious organizations typically bring together people of one particular faith, for-profit corporations bring in a diverse group of employees.
Some have criticized the ruling, fearing that even though the Court passed a limited ruling affecting only “closely held” for-profits and only on the contraceptive mandate, it could have a wider impact. One such impact is the increasing application of the “substantial burden” standard to organizations, a standard taken from the language of RFRA that states, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”
Several cases have emerged in the last year which expands on what constitutes a substantial burden. One case, Perez v. Paragon Contractors, involves accusations of child labor being used “by members of the Fundamentalist Church of Jesus Christ of Latter-day Saints.” A leader of the church was allowed to avoid testifying as it “would amount to a ‘substantial burden’ on his religious beliefs.” Another case (which is still pending in the Tenth Circuit), Little Sisters of the Poor v. Burwell, involves a religious organization’s ability to opt out of contraceptive care. Though the current rule only requires such organizations to write a letter to the government and they will be relieved of their obligation to provide contraceptive coverage, the religious order argues that this poses a substantial burden and violates their RFRA rights by “‘triggering’ the provision of contraceptive coverage to which they object.” Should the Little Sisters succeed in their suit, writing a letter will be enough to constitute a substantial burden. While this is still limited to mainly religious organizations at the moment, the expansion of what constitutes a substantial burden already shows an increase in impact.
Some fear that another impact of this decision, in the wake of the Supreme Court’s decision last week in Obergefell v. Hodges, could be discrimination against same-sex marriages. Even though the Supreme Court has now recognized a constitutional right to marry, some business owners may try to use RFRA, and its state equivalents, to refuse to take part in those services citing that it violates their religious beliefs. The ACLU recently pulled its support for all RFRA laws, citing concerns that these laws, once used to protect the religious views of some, may be used to “impose one’s [religious] views on others.” In time, challenges to these laws may emerge, in which case the Court will need to decide between the competing rights of people and corporations. Burwell vs. Hobby Lobby, Inc. may have been the start of a slippery slope.