New Supreme Court Case Could Stretch RFRA to Breaking Point

If Congress, which passed both RFRAThe Religious Freedom Restoration Act of 1993 is a federal law that protects the free exercise of religion rights of individuals and corporations (Hobby Lobby) against encroachment by the federal government. and Obamacare, believes RFRA's application goes too far, Congress could decide to repeal all or part of RFRA.

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The Supreme Court has agreed to decide whether religious organizations that oppose contraceptive coverage must inform the government of their objections so coverage can be offered directly by an insurance company. The organizations claim it is a "sin" to "trigger" the action by others and that the minimal notification requirement, which was designed to accommodate them, still violates the 1993 Religious Freedom Restoration Act. Churches and schools are exempt from the notification requirement even though it currently applies to religiously-affiliated non-profit organizations.

RFRA exceeds the bare protections offered by the Constitution, as determined in Employment Division v. SmithEmployment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), is a United States Supreme Court case that held that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. (1990). As a result, RFRA is not a Constitutional provision and only has the strength of Congress behind it. Congress can still change its mind.

Even though some argue that RFRA was originally intended to protect the religious practice rights of "closely held private corporations," the event that led to the passage of RFRA involved individuals who used peyote as part of their private religious practices. But with Citizens United, the Court began to recognize that provisions in the Bill of RightsThe first ten amendments to the Constitution that were adopted in 1791. that applied to individuals also applied to corporations.

With the outcry over the Hobby Lobby decision which took a private right and extended it to corporations, Congress may well revisit RFRA. Under Citizens United and Hobby Lobby, whatever Congress does to restrict RFRA will not only apply to corporations but to private individuals as well unless Congress is willing to find a way to carve out exemptions to protect individual rights.

Given the fickle nature of electoral politics, it is possible that the current conservative Congress will be lose its majority status giving a more liberal Congress the opportunity to restrict RFRA. If Congress, which passed the Affordable Care Act in the first place, perceives that the application of RFRA goes too far, Congress could decide to repeal all or part of RFRA.

Little Sisters of the Poor will likely be heard in late March.  Frankly, the accommodation offered to the organization is not unreasonable, and while may be tempting for the institutions to use every possible argument and to "win at all costs," one would hope that their attorneys will instead fashion their arguments with the surgical precision necessary for this particular case but not create an environment for further Congressional backlash against RFRA.

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