If Congress, which passed both RFRA and Obamacare, believes RFRA’s application goes too far, Congress could decide to repeal all or part of RFRA.

RFRA stretched

Photo: DepositPhotos.com / Gajus-Images


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. Smith (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 Rights 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.



1 Comment

  1. Jason Miller says:

    Since when was “reasonable accommodation” the standard for RFRA? If I recall correctly the standard for RFRA based on Sherbert is “narrowly tailored” or “least restrictive means” (Thomas v. Review Board). That is a much more stringent standard than “reasonable accommodation”, which is the Title VII standard. You might be right the government’s offer is a “reasonable accommodation”, however is the government’s offer really “narrowly tailored”?It seems not as there are at least five different ways government could accomplish its task of providing contraceptives and abortifacients without requiring elderly nuns to assist it.