After the U.S. Supreme Court decided to no longer strictly scrutinize most laws that substantially burden religious liberty, outraged people of all ideological hues vowed to restore the legal protection refused by the court. The Senate passed the bill 97-3. The House passed it unanimously.
RFRA instructs courts to invalidate any law or government action that substantially burdens religious belief or practice, unless the government meets the burden of proving that it is pursuing a compelling government interest and the law or action is absolutely necessary to achieve this overriding aim.
But it is one thing to believe in the abstract idea of religious liberty; it is quite another to protect the particular practices of those who adhere to a faith you dislike. Too many of us say we are friends of freedom, but believe in freedom only for our friends.
True friends of freedom understand why the U.S. Court of Appeals for the 10th Circuit recently ruled in favor of the Green family, owners of the Oklahoma City-based Hobby Lobby and Mardel stores, in their legal challenge to the contraception mandates of President Obama’s health care plan.
The Greens object to providing, through their employee health insurance, four of the 20 forms of contraception the law mandates insurance plans cover. They claim these specific drugs or devices are abortifacients, and, thus, providing them to their employees would violate their Christian faith.
Some say the Greens are wrong to object to these drugs or devices — they are just forms of contraception and don’t induce anything similar to an abortion. But under RFRA, courts cannot question the truth or interpretation of the believers’ faith. Freedom for only those we think are reasonable is no freedom at all.
Some argue the owners of a for-profit enterprise are not protected by RFRA. All who take religious liberty seriously see why this argument is wrong. How can you be committed to a religious way of life if it does not shape how you pursue your vocation? Anyone who is familiar with their enterprises knows that if there is anyone who genuinely seeks to practice their faith through their business, it’s the Greens.
But isn’t the guarantee of universal health coverage, particularly as it concerns women’s health, a compelling reason to make the Greens obey the law? It might be if all businesses were forced to comply, but they’re not. The law exempts scores of businesses, including small firms and those with grandfathered insurance plans. You can’t exempt these people and then argue you need to stick it to the rare businesses that explicitly operate on religious principles. As RFRA teaches us, people of faith should be the first we exempt from burdensome laws, not the last.
Spiropoulos is director of the Center for the Study of State Constitutional Law and Government at Oklahoma City University School of Law.
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This article appears in Jul 31 – Aug 6, 2013.