by Michael Dorf
My latest Verdict column asks how Congress might amend RFRA if it is unhappy with the ruling in Burwell v. Hobby Lobby. I offer a menu of eight options, some of which could be deployed in combination with others. As the column acknowledges, the most likely outcome is that Congress will do nothing, given the Republican majority in the House and the possibility that Democrats lose the Senate in the midterms. Still, thinking about how to fix RFRA is a useful exercise while the Hobby Lobby ruling is fresh in the public imagination, partly because the politics might some day change, and partly because thinking about how to fix RFRA helps clarify what, if anything, is wrong with Hobby Lobby.
In this post, I want to call attention to a feature of our statutory regime of conscience exceptions that comes up briefly in the column: In addition to general provisions for religious exceptions like RFRA, Congress and state legislatures sometimes enact provisions authorizing exceptions from specific legal requirements deemed especially burdensome to those people with conscientious objections. Consider five examples:
1) When the U.S. had the military draft, conscientious objectors were exempted so long as the objection stemmed from "religious training or belief" rather than "essentially political, sociological, or philosophical views, or a merely personal moral code." (The provision remains on the books in the event that the draft is reinstated.)
2) Recipients of federal funds for population research and family planning are obligated to excuse anyone from participating in a sterilization or abortion if doing so "would be contrary to his religious beliefs or moral convictions."
3) As noted in Employment Division v. Smith, the SCOTUS case that inspired RFRA in the first place, some states with peyote prohibitions excepted ritual use, and during Prohibition, exceptions were made for sacramental use of wine.
4) New York's law recognizing marriage equality (enacted in 2011) immunizes religious organizations and other non-profits from liability under New York's anti-discrimination law for refusal to participate in same-sex marriages. Other states have similar provisions.
5) The HHS regulations that implement the Affordable Care Act exempt employers organized as religious non-profts from the obligation to provide health insurance plans that cover contraception. These were at issue, of course, in Hobby Lobby and in Wheaton College v. Burwell.
Other examples could be adduced, but these five suffice to raise the question that now concerns me: Under what circumstances would a legislature think it appropriate to authorize religious exceptions or religious plus moral exceptions to a particular legal obligation rather than, or in addition to, enacting a general law authorizing exceptions to laws that are subjectively experienced as especially burdensome on religious (or other) conscience?
The argument for specific exceptions rather than a general RFRA-like provision is articulated in Smith. There, Justice Scalia explained for the majority that judges are poorly situated to weigh claims of religious conscience against public policy aims, but that legislatures are permitted to fashion exceptions because balancing competing values and policies is a familiar legislative task. (For my suggestion that Justice Scalia has inadequately explained his shift from critic of judge-fashioned exceptions under the First Amendment to champion of such exceptions under RFRA, see my SCOTUSblog entry.)
Beyond the question of who grants the particular exceptions, there is another difference between a general provision like RFRA and specific statutory exceptions: Unlike RFRA exceptions, specific exceptions are automatic, once the claimant establishes a qualifying sincere objection. Thus, in each of the examples listed above the government is denied the opportunity to demonstrate on a case-by-case basis that universal compliance is required by the compelling interest test.
What is the argument for specific exceptions in addition to a general RFRA-like provision? I can think of three sorts of justifications. (Readers may be able to identify others.) First, the legislature could make a judgment that certain sorts of legal obligations are especially likely to provoke conscientious objections, although that is a double-edged sword, because the large number of objectors could undermine the obligation in general.
Second, the legislature might think that some legal obligations are especially burdensome to people who have conscientious objections. This seems like a good explanation for the specific exception to military service: obligating someone to kill in violation of his conscience is about as serious a violation of conscience as can be imagined. Likewise with respect to abortion, because people who oppose abortion regard abortion as killing innocent human life. And thus contraception could fall within this justification insofar as some methods of contraception kill zygotes rather than preventing fertilization. (I put to one side my argument last week that the claimant's false scientific beliefs may be a predicate for such a claim under RFRA; we might require more under a specific regime that goes beyond RFRA.)
Third, the legislature might make a judgment that some legislative objective either isn't very important or can tolerate a relatively small number of opt-outs. Something like this is probably at work in the peyote and Prohibition exceptions. Whether the judgment is accurate is an empirical question. Note that in the federalism context, the Supreme Court said that allowing a medical exception could undermine a general prohibition on marijuana. If that's true, the same could be true for a religious exception to a ban on some substance.
None of the foregoing justifications quite works for specific legislative exceptions to anti-discrimination law with respect to same-sex marriage; a narrow provision exempting clergy and perhaps some others from performing marriages could be justified on free exercise grounds, but the New York exceptions are substantially broader. We do not see anything like this with respect to religious objections to interracial marrage, by contrast. Likewise, it's hard to see why there is a need for special legislative exceptions for contraception that no one thinks amounts to abortion.
So what explains these two special exceptions? In a word, politics.
In New York, the anti-discrimination exception was simply the political price of marriage equality. The law would not have passed without it. Likewise, the Obama Administration fashioned the exception to the ACA contraception mandate in response to political pressure, especially from the Catholic bishops.
Politics can change, however. The defeat of the proposed expansion of Arizona's RFRA earlier this year shows that the public mood probably has shifted subsantially against (all but narrow) exceptions to the implications of LGBT equality. Meanwhile, the breadth of the Obama Administration's accommodation--allowing an opt-out from all contraceptive coverage, not just contraceptives that are arbuably abortifacients--was never really justified politically. The bishops' stance agains contraception is rejected in practice by a very clear majority of American Catholics.
Speaking of politics, we are already seeing Democratic candidates trying to use Hobby Lobby to their advantage. I don't know how effective the tactic will be in the midterms, but I suspect that over the long run the issue will break the Democrats' way. Just ask Rick Santorum.