"Religious Freedom" as a Shield and a Sword: Tensions Between Conflicting Rights

"Religious Freedom" as a Shield and a Sword: Tensions Between Conflicting Rights

JURIST Guest Columnist Nancy Marcus of Indiana Tech Law School discusses religious freedom in the US…

In a recent battle between reproductive rights and religious freedom, the US Court of Appeals for the Ninth Circuit in Stormans, Inc. v. Wiesman rejected claims brought by a pharmacy owner and two pharmacists seeking exemptions from regulations requiring the timely dispensation of drugs to patients. The pharmacist plaintiffs, alleging “free exercise” religious freedom and other constitutional claims, initiated the lawsuit in 2007, challenging the Washington state regulations based on their religious objections to being required to provide emergency contraceptives to rape victims and other patients in need. The court rejected their free exercise and other constitutional claims, concluding that the pharmacy rules were neutral laws of general applicability and justified under rational basis review.

The Stormans decision emphasized the need for patients to be able to access medicine expediently and free from shame imposed by their pharmacists. The court also followed the Supreme Court’s 1990 decision in Employment Division v. Smith, in which Justice Scalia, writing for the majority, established that the right to freely exercise one’s religion “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Given that Scalia is himself a proudly staunch Catholic whose religious views inform many of his positions, his strong condemnation in Smith of attempts to carve out religious exemptions to laws may at first seem counterintuitive. His majority opinion in Smith, however, may perhaps best be understood by reference to the case’s context: Smith involved religious freedom claims by members of the Native American Church seeking drug law exemptions due to their use of peyote during religious ceremonies. Scalia, it appears, was more loathe to rule in favor of judicially limiting drug laws than he was willing to facilitate free exercise claims at any cost. And so it came to be that perhaps the most vocally religious sitting member of the Supreme Court bench ended up authoring the Supreme Court decision that most severely curtailed constitutional religious freedom protections.

Due to Smith’s establishment of rational basis deference as the applicable standard for free exercise claims, it should come as no surprise when courts in free exercise cases such as Stormans defer to reasonable justifications for laws of general applicability in rejecting religious exemption claims. Religious plaintiffs seeking exemptions from laws that they feel force them to participate in the provision of reproductive health care services against their beliefs are less likely to succeed in a constitutional challenge triggering only deferential rational basis review than under other types of challenges grounded in statutes that either accord a higher degree of scrutiny to government actions or that specifically carve out refusal, or “conscience” clause, exemptions to laws.

For example, in the aftermath of Smith, the federal Religious Freedom Restoration Act (“RFRA”) was enacted by those who felt that the decision had curtailed religious freedom to a damaging degree. An ultimately bipartisan majority of Congress, with President Clinton’s signature, enacted RFRA to restore a higher degree of scrutiny to government actions that allegedly violate religious freedom. Specifically, RFRA replaces Smith’s rational basis review for free exercise claims with the heightened scrutiny standard of review that, in RFRA claims, requires the government to justify through a compelling government interest its actions that impose substantial burdens on religious exercises.

While the original federal RFRA was not enacted initially as an anti-reproductive rights statute (or even as an anti-LGBT rights statute, which has been the underlying tenor of more recent state RFRA battles), both the federal statute and their state RFRA progenies have in recent years become the focal point of challenges by religious conservatives to laws providing reproductive health care coverage.

At the Supreme Court level, the federal RFRA was the basis of the plaintiffs’ successful challenge in Hobby Lobby v. Burwell to contraceptive coverage requirements of the Patient Protection and Affordable Care Act as applied to certain closely held corporations. In Hobby Lobby, the court allowed closely held corporations that cited religious objections to contraceptives they believed to be abortifacients to make a certification for the accommodation of its objections, which would result in the coverage still being provided to employees, but through a separate payment structure not funded directly by the employer.

It remains to be seen how broadly the Hobby Lobby decision can be extended as a shield, or even a sword, by those claiming religious exemptions from other laws of general applicability. So far, its reach has been somewhat limited in post-Hobby Lobby challenges to the Affordable Care Act’s contraceptive coverage requirements. In University of Notre Dame v. Burwell, the US Court of Appeals for the Seventh Circuit rejected a RFRA-based claim by the Catholic university to the Affordable Care Act, concluding that the school had no viable claim based solely on its contractual relationship with health care companies that provide contraceptive coverage to students and employees, and noting that the school’s demands were even broader than those in Hobby Lobby, with the school refusing to accept even the certification accommodation compromise. Similarly, in Priests for Life v. Department of Health and Human Services [PDF], the US Court of Appeals for the D.C. Circuit rejected arguments that the regulatory certification accommodations did not go far enough in protecting the religious freedom of various religious nonprofit organizations that chose to opt out of the Affordable Care Act’s contraceptive coverage requirements.

The free exercise and federal RFRA cases are only two types of cases that are part of a broader and more complex history of religion-based challenges to laws of general applicability pertaining to reproductive health care access. While some claims have been brought through federal or state RFRAs, there is also a legislative trend of religious objectors legislatively carving out exemptions from laws specifically governing reproductive health services. As the Guttmacher Institute reports, every state in the country allows health care providers to refuse to perform abortions. In addition, eighteen states allows some health care providers to refuse to provide sterilization services, and thirteen allow some health care providers to refuse to provide contraceptive coverage. These exemptions, often written in terms of “conscience” clause exemptions, or “refusal” clauses, extend in many states to pharmacies, to both secular and religious medical institutions and to health care professionals ranging from doctors and nurses to pharmacists. The Guttmacher Institute further reports that while a few states have enacted laws “that specifically allow pharmacists or pharmacies to refuse to provide health care because of religious or moral objections … other states have broadly worded refusal clause statutes that also might apply in these circumstances.”

Not every religious organization, or even Christian organization, it should be noted, shares moral objections to birth control, emergency contraception, or even abortion. To the contrary, the Religious Coalition for Reproductive Rights, a broad coalition of religious organizations that oppose religious freedom-based challenges to reproductive rights, has taken the position “that real religious liberty protects the right of a woman to make thoughtful decisions in private consultation with her doctor, her family, and her own faith. Politicians and the religious dogma of another faith should never interfere with religious liberty of an individual.”

In recent years, free exercise, RFRA and conscience clause debates have expanded into a different but related area: the access of LGBT citizens to equal marriage rights, to public accommodations and to other rights and privileges that go hand in hand with equal citizenship. Citing moral objections akin to their reproductive health care objections, some groups have recently raised religious freedom claims in efforts to avoid becoming even minimally involved in the equal treatment of LGBT citizens. One of the famous and divisive such incidents is the case of an Oregon bakery, Sweet Cakes by Melissa, that was found to have violated a state nondiscrimination ordinance when its owners refused to sell a wedding cake to a same-sex couple and was consequently fined by the Oregon Bureau of Labor and Industries in a final order that rejected a free exercise constitution defense raised by the bakery.

Those who seek to use religious freedom as a shield against accommodating LGBT individuals are more likely to be successful when their claims also involve compelled speech, as in a recent case that involved successful RFRA and compelled speech arguments by a t-shirt company that successfully defended itself against a discrimination claim brought by the Lexington, Kentucky, Pride festival organizers after the company refused to make t-shirts for the group. The court decision in favor of the t-shirt company applied both Kentucky’s RFRA statute and the Supreme Court’s Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston case—in which the court had held that parade organizers may not be compelled even under an anti-discrimination statute to include a pro-LGBT message with which it disagrees in their parade—in its ruling for the t-shirt companies.

Whatever the particular legal basis of a religious freedom claim, this series of developments begs the larger question: should one group’s religious freedom claims be used, not just as a shield against oppressive laws that might limit how one’s religion is practiced in the privacy of one’s own religious community, but also as a sword to intrude upon the rights of others, whether in the context of reproductive health care access or the civil rights of LGBT individuals? These tensions between reproductive and LGBT rights, on the one hand, and the religious freedom to either discriminate against sexual minorities or deny access to their rights and to the reproductive rights of women, on the other, will continue to percolate in legal battles across the country, as conflicts continue among those resisting the trajectory of progress toward greater LGBT rights and reproductive health care access in this country.

Nancy Marcus is the founding constitutional law professor at Indiana Tech Law School. She is also the Chair of the American Bar Association Civil Rights Section LGBT Rights Subcommittee, the Co-Founder of the national BiLaw organization, and her past work has included serving as the State Public Policy Director for the National Abortion Federation. Professor Marcus received her J.D. from Case Western Reserve University School of Law and her LL.M. and S.J.D. from the University of Wisconsin Law School.

Suggested citation: Nancy Marcus, “Religious Freedom” as a Shield and a Sword: Tensions Between Conflicting Rights , JURIST – Academic Commentary, August 11, 2015, http://jurist.org/forum/2015/08/nancy-marcus-religious-freedom.php


This article was prepared for publication by Elizabeth Dennis, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org.

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