By Jason Hines, PhD, JD –
Prior to 1990, the Supreme Court’s standard in determining whether a law violated a citizen’s free exercise of religion was intimately tied to the Seventh-day Adventist Church. An Adventist, Adele Sherbert, sued to receive unemployment benefits after she was fired from her job because she refused to work on the Sabbath. In the case that now bears her name, Sherbert v. Verner, the Court ruled in her favor, establishing the rule that the government could not substantially burden a citizen’s religious freedom unless the government had a compelling interest and had narrowly tailored the measure to minimize infringement.
That standard stood until 1990, when the recently deceased Justice Scalia penned the decision in Employment Division v. Smith. Scalia found the Sherbert test to be unworkable, leading to the potential for anarchy. What law could ever stand the stringent test Sherbert sought to apply? How could society function or anyone have respect for the law when exceptions to every law would have to be made for anyone who could drum up a religious objection? Scalia solved the problem by creating a way more lenient test (at least from the government’s perspective) – if the law at issue was a neutral law of general applicability, it was a good law, at least as far as a religious constitutional challenge was concerned. Scalia’s test was negatively criticized from all corners, and Congress responded by passing the Religious Freedom Restoration Act in 1993, which reasserted the Sherberttest at the federal level. However, as some Christians continue to push the boundaries of free exercise beyond constitutional sense in a pluralistic society, I have come to believe that Scalia might’ve been on to something.
The latest step down the slippery slope to Scalia’s anarchy is Zubik v. Burwell, (also referred to as the “Little Sisters of the Poor” case) which was argued in the Supreme Court yesterday. This case, considered to be somewhat of a companion to the Burwell v. Hobby Lobby case the Court heard in 2014, continues to make a religious objection to the contraception mandate of the Affordable Care Act. Several religious charities are arguing that the concessions the Obama administration made regarding the contraception mandate do not go far enough. At this time, all the organizations have to do is fill out a form stating their objection and listing their insurance company. The religious organizations argue that this is still a substantial burden to their free exercise because for them filling out the form (and in naming their insurance company) is a spiritually impermissible facilitation of what they consider a moral wrong.
With the passing of Justice Scalia, a 4-4 split seems likely. However, a split on the Court would leave the nation with conflicting law based on jurisdiction, and I am loathe to believe that the Court would allow that to be the case. As such, a victory for the government is the more likely outcome, simply based on the numbers. I think it will be harder for the conservative wing of the Court (which now stands at 3) to get a liberal justice to agree with them. Then it would be for the liberal wing of the Court to get the one swing vote (Justice Kennedy) to side with them. As for the law itself, I think based on the Court’s decision in Hobby Lobby last year, it would be hard to argue against the position of the religious charities here. After all, as far as healthcare is concerned, there is always a least restrictive means available for any regulation that infringes on an institution’s free exercise – let the government pay for it.
Putting the politics of the Court aside, there were a couple of troubling statements made in front of the Court yesterday, at least from the perspective of someone who is interested in protecting the free exercise of religion in this country. Oddly enough, both of those statement were made by those arguing for the religious adherents in this case. Cases involving religion ask two largely perfunctory questions – first, whether the citizen is sincere in their beliefs, and two, whether there is a substantial burden on the citizen’s practice of their faith. The Court is reluctant to decide on whether the citizen is sincere. It does not want to be in the business of legitimizing some beliefs over another.
Furthermore, the Court only in rare cases finds that there is not a substantial burden for the same reason. Despite the fact that the government conceded both points to the religious adherents in this case, the lawyer for these adherents at times gave the impression that it was within the purview of the Court to determine both sincerity and substantial burden. This position, while it might be useful for them to say in this particular argument would be amongst the many arguments made by the religious institutions in this case that would have a deleterious effect on the free exercise of religion going forward.
When I think of this case I am reminded of the legal cases involving crosses on public land that occurred roughly a decade ago. Christian groups at that time were so set on being able to have these religious monuments on public land that they went into court and argued that the symbol of the cross did not have any particular sectarian meaning. In order to erect a cross on public land, Christians were willing to strip the cross of its power and meaning. It seems to me that these organizations in the Zubik case are making the same mistake by pressing the argument of free exercise so far that it will become meaningless in the future, even if we win the battle today.
 A good example of this from the Hobby Lobby case in 2014 was the question of whether the drugs Hobby Lobby objected to were actually “abortifacients.” The Court said that question was moot and that the issue was that the Green family was sincere in their belief that the drugs were abortifacients.
Jason Hines is an attorney with a doctorate in Religion, Politics, and Society from the J.M. Dawson Institute of Church-State Studies at Baylor University. He is also an assistant professor at Adventist University of Health Sciences in Orlando, Florida.
This article was first posted at Spectrum Magazine and is reprinted with permission.