The Supreme Court said the answer to that question was no: The employees didn’t have the rights here. Justice Antonin Scalia wrote that since peyote is illegal, and since that law is “neutral” in applying to everyone, the state could impose it. At the time, the ruling read as insensitive to the lack of power religious minorities have relative to the majority. “In law school, I saw Smith as a conservative decision,” Brooklyn law professor Nelson Tebbe remembered when I called him this week. “And when Congress passed RFRA in response, it was about protecting potentially persecuted minorities. But now, in an amazing shift, it’s the most powerful religious organizations in the country that are invoking this law—the Catholic Church and Protestant evangelicals.”
Tebbe is one of the authors of another brief in the Hobby Lobby case—one that I find persuasive. The brief deals with the tension in the Constitution’s dual directive about religion in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” What happens if your free exercise runs into my right not to have your religious views “established”—in other words, imposed upon me?
The brief by Tebbe and his colleagues argues that this is the collision between Hobby Lobby and its employees. “The Establishment Clause prohibits the government from shifting the costs of accommodating a religion from those who practice it to those who do not,” the professors write. And exempting Hobby Lobby from the contraception mandate “would shift the cost of accommodating Hobby Lobby’s religious exercise to employees who do not share its beliefs.” The brief spells out the cost: Hobby Lobby’s interpretation of religious freedom “would deprive Hobby Lobby’s thousands of female employees and the covered female dependents of all employees of this entitlement. This, in turn, would saddle them with significant burdens ranging from the substantial out-of-pocket expense of purchasing certain contraceptives to the personal and financial costs of unintended pregnancies. The Establishment Clause does not permit this.”
RFRA should be read to observe the limit the Establishment Clause sets, Tebbe and his colleagues argue, and that in itself is a compelling government interest, which is what RFRA requires a federal rule or law to show. A wave of relief hit me when I read this. Even if the Supreme Court screws up and says that Hobby Lobby is a “person,” the company should still have to provide contraception coverage to the women who work for it. That’s because the government has a compelling reason for requiring birth control as part of comprehensive preventive care for women, as I’ve explained before. Preventing unintended pregnancy is a benefit to women’s health. And Hobby Lobby also should have to provide contraception coverage because its religious rights don’t trump the rights of its employees.
RFRA calls for a balancing act. And in most of the previous Supreme Court cases in which the court has recognized an exemption from a law for a religious group, it’s been in a circumstance where there’s little or no cost to other people. If Native Americans want to take peyote as a form of worship, or another group, in another Supreme Court case, wanted to drink hallucinogenic tea, they can do it without burdening the rest of us. Ditto for the Amish family that didn’t want to send their children to regular school, as state law required, and won at the Supreme Court back in 1972, before Smith.
For businesses, when religious freedom comes at a cost to employees or customers, it has to give. That’s the best way to interpret RFRA, and it’s also the best fit for the American tradition of tolerance. This is a country of live and let live. That’s how businesses as well as the government have to function. Hobby Lobby’s owners can object to forms of birth control personally while respecting the rights of their employees to receive it as a benefit. And if a state has the sense to outlaw discrimination on the basis of sexual orientation, then the owners of companies that are in the wedding business can steer clear of gay marriage on their own time, but when their doors are open to the public, then they serve whoever walks in. That’s what religious liberty has to mean in the end. Now let’s get there.