Some Jewish Thoughts on Understanding Hobby Lobby: Religious Freedom Did Not Really Win or Lose

by Michael Broyde


The Supreme Court has spoken again on the place of religion: last week the Supreme Court decided (5-4) that closely held private corporations as well as individuals are not bound by the administrative rules of the Department of Health and Human Services [HHS] that mandate contraception be provided as part of one’s Employer’s insurance plan. Furthermore, the Court did not mandate this result on any constitutional grounds, but purely based on the Religious Freedoms Restoration Act and its progeny. In essence, the Supreme Court held that the administrative regulations proposed by HHS violate a prior act of Congress. Although the Court does not say so explicitly, it is fairly clear that not a single justice (and certainly not five) would have any difficulty reaching a different decision if Congress were to change the laws protecting religious freedom.

Understanding the Historical Path of the Law here is Important.

This decision is yet another in a long line of religion cases that has left our law and jurisprudence somewhat confused. Here is a brief review that might help us understand. The First Amendment to the Constitution tells us simply that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” and this has been understood for decades as protecting two somewhat competing values: the right of every person to worship as they see fit and the duty of the government not to privilege one faith over another. (Although there was a time when this was understood as limited to the Federal government, for many decades now the First Amendment applies to all the branches of government: Federal, State and local).

Over the decades, based on these principles, the Supreme Court has ruled that government cannot establish religious rituals as part of our government conduct unless they are open to all faiths, allow displays on government properties that are particular to one faith, or otherwise allow one faith to either be, or even appear to be, the established church. Furthermore, starting in the 1970’s the Supreme Court prohibited excessive entanglement of government and religion in a famous case called Lemon v. Kurtzman, creating greater separation between church and state.

But, in 1990 in Employment Division v. Smith the highest Court held that the government need not exempt people acting based on their religious beliefs from generally applicable laws, so long (as the court made clear in a follow up case of Church of Lukumi Babalu Aye v. City of Hialeah) as the law was passed without any anti-religious animus. So, even if your religion mandated ingesting peyote, it was still a crime and cannot be done. This was a very important case and its impact cannot be understated.

Congress responded to Smith by passing the Religious Freedom Restoration Act (RFRA) in 1993 mitigated Smith by directing that even when laws are neutral to religion, if they are a substantial burden to religious practice, they shall only apply to those religious practices when both (1) it is in furtherance of a compelling governmental interest; and (2) forcing all to act is the least restrictive means of furthering that compelling governmental interest. The Supreme Court struck down parts of RFRA in City of Boerne v. Flores, and the act was repassed in modified form by Congress under the name Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) which repeated the basic test of RFRA in a smaller subset of cases – but still binding on Administrative regulations of the Federal government.

Furthermore, the court has made it clear in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission that some generally applicable laws that prohibit (for example) discrimination cannot be applicable to churches themselves, as the government has no authority to regulate core religious functions of those who are ministers (or priests or rabbis or imams) or why they are hired or fired and how they function.. Religious Corporations could not be tightly regulated by the government and could not be compelled to provide birth control if their faith opposed such. Hosanna-Tabor was a very large expansion of religious freedom for religious institutions in that it exempted them from generally applicable laws, carving out an apparent exception to Smith.

Hobby Lobby’s majority opinion focused on a very narrow problem: ObamaCare put forward Department of Health and Human Services administrative regulations (which are not part of the law itself) that mandated the distribution of some forms of birth control that some privately held corporations found offensive to their religious values. Do this HHS regulations trump the rights of these for profit companies under RFRA or RLUIPA? Or maybe as HHS claimed, for profit corporations are not covered by RFRA or RLUIPA? (The Court had already indicated that religious corporations (like a church) were exempt from these provisions, and the Administration proposed a work around which might or might not be constitutional: but that is for another discussion.)

In Hobby Lobby, by a vote of 5 to 4, the Supreme Court ruled that HHS regulations must comply with RFRA or RLUIPA and that both of these statutes apply not only to individuals but to privately held for profit corporations. The Court then found that these regulations were not the least restrictive means of furthering that compelling governmental interest and then struck the administrative regulations down as being in conflict with an Act of Congress.

Why is this Case Is Not As Important A Victory to Our Community As We Might Like

Hobby Lobby will, I suspect, not turn out to be as important a case to the Orthodox Jewish community as we might think, and may not turn out to be an important case at all. It is not an important case to those who are loyal to Jewish law because unlike the evangelical community, we have elaborate doctrines that do not compel us to always separate from sin those who want to sin. Without elaborating on the complex details of the sugya, halacha makes many distinctions. We have greater responsibility to keep Jews from sinning than non-Jews, and we sometimes draw distinctions between intentional and unintentional sinners. We look differently upon assistance that we offer immediate to the performance of an aveirah, and help or tacit support we offer that is further removed. The upshot is that we will generally not share the same concerns as those at the Hobby Lobby Corporation.. The problem in Hobby Lobby is about a person who is providing a subsidy for conduct by others that violates his religious beliefs is not generally considered an important issue in halacha.

Furthermore, Hobby Lobby could easily be read to clarify that rights here are purely statutory and Congress could with little difficulty repeal or modify RFRA or RLUIPA so as to strip religious conduct of any protection at all against generally neutral laws. All we would be left with then is the general holding of Church of Lukumi Babalu Aye that neutral laws really have to be neutral in intent before they may validly suppress religious conduct. We would have no significant Constitutional protection against for example the neutral regulation of circumcision by what is otherwise a good law: consider the law which reads “no surgery may take place outside a hospital and with a licensed physician performing it for a valid medical purpose.” This neutral law (one whose intent we would generally support, were it not for its impact on bris milah) functionally prohibits Jewish circumcision (and I hope would be struck down under the Lukumi Babalu line of bad motive cases). RFRA or RLUIPA now protects us, but Hobby Lobby inclines one to think that these are mere acts of Congress and nothing else. We have not received the constitutional guarantees we might have liked. What a legislature giveth, another legislature taketh away. There are already machinations in place to weaken RFRA in order to circumvent the Supreme Court decision While Hosanna-Tabor protects our synagogues and yeshivas from regulation that violates halacha as a matter of Constitutional law, nothing protects us as individuals.

So, while many in our community are dancing in the street since religious liberty won 5-4, I am more somber in my assessment and think that Hobby Lobby’s progeny will not be a harbinger of any further important victories for our community in this area. Hobby Lobby was a good win, but since all that it really determined was that administrative regulations are subservient to Congressional acts, little of long term value was established.

Indeed, it is somewhat unclear to me what we really ought to want in this area: I do not think we actually ought to support the idea that a person or corporation with genuinely sincere religious convictions can engage in commercial discrimination even when his faith directs such (as I think a Synagogue can do), as we are a tiny minority easily subject to terrible economic discrimination. What will we say to those who will find religious reasons to discriminate against non-believers in general, or Jews in particular? So while a Congregation can legally consider the religious practices of its congregants, we ought to favor a level playing field on commercial matters such that the religious practices of customers, clients or consumers does not play a role in commerce.

Rabbi Michael J. Broyde is professor of law at Emory Law and a senior fellow at the Center for the Study of Law Religion at Emory University.

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16 Responses

  1. Steve Brizel says:

    This article ignores the fact that litigation against Chasidic storeowners in Williamsburg who insisted upon a dress code which was p;remised upon purported violations of civil rights was discontinued by the plaintiffs. I think that the 5-4 decision sends a clear message that the free exercise of rligion trumps a judicially created right of privacy that has morphed by the same means into a “right of reproductive freedom.”

  2. Dovid Shaleesh says:

    Rabbi Broyde,

    I’m a bit surprised at you–as if there is a distinction between religious matters and commercial matters.

    At stake in this case was whether there is any freedom of religion once one walks out the door of their church. Are religious matters any less important simply because they happen to arise in a commercial activity? Are you in favor of a society where people must choose between commercial activity and their religion?

    Suppose a law that says corporations must operate 7 days a week–are you ok with that? It’s commercial activity, so nobody should have a problem.

    And this was much broader than just interpretation under RFRA and RLUPA–this was about the very issue of whether religious liberty can be implicated when acting through a corporation.

    I’m dancing in the streets on this one, but also absolutely appalled that the country has come to a place that would force people to violate their religion so that their employees shouldn’t have to spend 10 bucks on birth control. Scalia’s theory in Smith was that the religious interests would always get an exemption anyway if the law was passed in good faith–that may have been true 20 years ago, but not so anymore.

  3. Steve Brizel says:

    We should note that the political , cultural and academic left in the US all view the free exercise of religion as a set of norms that they dispensed with decades ago and urge others to do so,and seek to replace with an amorphous right of consenting adults to do what they want, whenever and with whomsoever so long as noone is hurt. That is why the free exercise in religion cases are invariably looked at with askance by the left, and litigated by groups such as the Beckett Foundation.

  4. Howard says:

    The author claims that,

    “In Hobby Lobby, by a vote of 5 to 4, the Supreme Court ruled that HHS regulations must comply with RFRA or RLUIPA and that both of these statutes apply not only to individuals but to privately held for profit corporations.”

    This is simply wrong. The part of the opinion that ruled that RFRA applies to privately held corporations was 5-2, not 5-4. Justices Breyer and Kagan refused to join Justice Sotomayor on that part of her dissent.

  5. DF (Esq.) says:

    Rabbi Broyde over-analyzes it. The case was a clear and important rejection of plaintiff’s specious argument that corporations as legal entities are incapable of having religious beliefs. As the court recognized, a corporation, at least closely held ones, reflects the views of its owners. As we do not force owners to violate religious beliefs, likewise we do not force corporations either. [And as for possible distinctions or limitations – that’s a feature of every case, and not something one can worry about in advance.]

    R. Broyde’s real concerns are expressed in his last paragraph, in which he thinks allowing some of what he calls “discrimination” will open the door to other forms of discrimination. Most people understand the difference between not providing contraceptives, and not providing services, period. Still, if these are R. Broyde’s concerns, he should be actively lobbying for the repeal of Title VII as a whole, rather than quibbling with this one decision. Many people foresaw before it was passed that codifying “no discrimination” would eventually lead to reverse-racism galore. Indeed, it wasn’t long before that came to pass, in the guise of “affirmative action” programs, which do nothing if not discriminate against white men, Christians, etc. Moreover, the case law and the dockets are crammed with contradictory arguments, in which to find discrimination in favor of one party is to engage in discrimination against the other. As long as the law is the books – and no politician has the stomach to take it up – the grievances of the “protected classes” are always going to trump those of the unprotected. That’s not a flaw in Hobby Lobby, its a flaw in the law itself.

  6. Bob Miller says:

    “…since all that it really determined was that administrative regulations are subservient to Congressional acts, little of long term value was established.”

    This puts the matter back in the hands of Congress. The job of the voter is to vote the right people into Congress. That would have little effect, though, if Federal administrators had been allowed to continue their unconstitutional activity. I hope future Supreme Court decisions will further restrain Federal administrators so that no further potential for abuse remains in their hands. However, if we voters continue to vote rascals in instead of out, and Congress remains asleep at the switch, that’s our fault.

  7. Tal Benschar says:

    This is a really short-sighted thread. Every decision, by definition, has to deal with the legal context it operates. Hobby Lobby dealt with RFRA, a federal statute that now only applies to federal law. It would be nice if it were a constitutional case (for at least two reasons, one that would also apply to the states, and two the decision would be much harder to overrule), but that horse left the barn a long time ago — when the Smith case was decided, and the later when the Supreme Court held that it was unconstitutional to apply RFRA to the States..

    Two positive things from this decision. One is that a commercial business, operated through a corporation has religious rights under RFRA, and presumably that would carry over to First Amendment cases as well. That, to my mind, is highly beneficial to Jewish interests, since Jews operate for-profit businesses, and often through corporations. The notion, advanced by Ginsburg and agreed to by Sotamayor, that in this context there are no religious rights at all would be devastating to Jewish interests. Alito referenced the 1961 cases involving Jewish butcher stores and the Massachusetts blue laws. Acc. to Ginsburg/Sotamayor’s view, they had no rights at all — forget about the Govt. (or state) showing a compelling interest, commercial activity simply is outside any protection.

    In a related vein, the majority opinion held that exercise of religion includes not only belief but also engaging in (or refraining from engaging in) certain acts, and that forcing a company to engage in activities violates the religion of its owners is a substantial burden on the company:

    [T]he ‘exercise of religion’ involves ‘not only belief and profession but the performance of (or abstention from) physical acts’ that are ‘engaged in for religious reasons.’ Smith, 494 U. S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition. Thus, a law that “operates so as to make the practice of . . . religious beliefs more expensive” in the context of business activities imposes a burden on the exercise of religion.Braunfeld, supra, at 605; see United States v. Lee, 455 U. S. 252, 257 (1982)(recognizing that “compulsory participation in the social security system interferes with [Amish employers’] free exercise rights”)

    . . .

    As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges . . . may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.
    If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe.

    The dissent’s insistence that corporations and for-profit businesses cannot engage in the exercise of religion is something that would be devastating to Orthodox Jewish ability to function in society. (If an Orthodox store owner decides to close on Shabbos and Yom Tov, is that an “exercise of religion?”) There is a recent trend to construe freedom of religion as freedom of worship. That means that the government cannot interfere with prayer, faith and rituals, but religious regulation of other areas of life is not within those freedoms. There are echoes of that in the dissent, and frankly it does not do Ginsburg, a secular Jew, any credit to take such a cramped view of what is protected by “free exercise of religion.” To me, the fact that the Supreme Court recognized that even in relatively “secular” parts of life (like running a business) one’s religion might have something to say, and that such deserves some protection from government intereference, is caused to be happy.

    Yes, Hobby Lobby does not solve all our potential problems — it would say nothing about, say, a law banning circumcision. That does not mean that it should not be appreciated for what it does say.

  8. Bob Miller says:

    “we ought to favor a level playing field on commercial matters such that the religious practices of customers, clients or consumers does not play a role in commerce.”

    Government should limit its own role in commerce to the minimum needed to carry out its responsibilities under the US Constitution. The endless and often illegal expansion of government power has created the conditions where lawsuits like this one are necessary.

  9. Michael Broyde says:

    Thank you to the many people who replied. Let me review. Smith deprives all religions of the right to be exempt from laws of general application: HL does not change that and corporations — like banks — that are in fields where the government regulates hours, must be open during those times. This case did not change in the least the basic framework of that issue: it made clear that closed corporations are people under RFRA and that administrative regulations are subject to RFRA. I do not think this is significant and it does not help with the real issue, which is that Smith is a bad decision for religious people. Counter balancing that in the real world is the desire of religious Jews not to be the victims of discrimination. Right now, all this is determined by Congress with no constitutional rights present.

  10. Steve Brizel says:

    Like it or not-Orthodox Jews, in the workplace, leave early on Friday and on the eve of holidays, have numerous holidays that require their absence from work, eat differently and have different values than their secular colleagues. We are deluding oursleves if you don’t think that such considerations are utilized in the so-called world of employer-employee relations. We can use protection from discrimination that has has many pretextual origins. Does not the legislative history behind the passage of RFRA shed light that RFRA was to restore what had always been a constitutional right of free exercise of religion as opposed to merely creating a new body of statutory and/or administrative law?

  11. Yehoshua Friedman says:

    People of faith and people concerned with the danger of excessive government should be lobbying their legislators to pass a law limiting the scope of government by administrative fiat and executive order. This rampant practice circumvents the intention of the framers of the Constitution that the legislative branch should legislate and not the other two. Exactly what the restrictions should be requires discussion from those learned in constitutional law, which I am not. But I trust that the author, R. Rosenblum and R. Adlerstein could all address this subject seriously.

  12. Dovid Shaleesh says:

    Rabbi Broyde, you are still missing the largest parts of this issue.

    Despite not overruling Smith, it does set up a framework that people are at least allowed to have any rights even when acting through a corporation. And that has implications way beyond RFRA: for example, if this case had gone the other way, suppose a law that said Jewish owned corporations had to be opened on shabbos would be constitutional under Smith -> Sherbert because the corporation wouldn’t have religious rights to sue upon!

    How could you possibly be in favor of a decision that would create absolutely no recourse for religious burdens when imposed on corporate shareholders?

    You example with the bank laws is very apt–if the FDIC or OCC or whichever agency would mandate that banks be open on shabbos, I would absolutely like to be exempted under RFRA (and better yet by overturning Smith). Otherwise could a frum Jew not own a bank? Is that what you want?

  13. Michael Broyde says:

    I think what most readers do not know is that banks (and a few other businesses) are already subject to regulatory rules about when they can open and close — banks may not close on Jewish holidays like Pesach and Rosh Hashanah — and they are not exempted from this rules in any way a all. This is a consequence of Smith and it has nothing to do with Hobby Lobby. That is exactly my point. HL is not very important, as Smith is still the law. HL did not change this issue at all and merely said that when individuals can be burdened, so can corporations. Steve Brizel asks about this history of RFRA and for the exact reason his suggests, the Supreme Court truck down the first RFRA in Boerne and an even more limited RLUIPA was passed. My exact point is that none of this has anything to do with HL, which (as I noted) is just not so important a case.

  14. Dovid Shaleesh says:

    I just don’t get how you think the corporation issue is not important. You are correct that Smith watered down religious liberty at the state level, but to whatever extent there is any protected religious liberty in this country, it is very very important that it apply to people acting in business and through corporations as well.

    That is, the precise opposite of what you suggest in the last paragraph that we should desire a divide between commercial activity and worship activity. As you well know, Jewish religious duty extends into every area of life, and does not stop at the synagogue door.

    And nor is Jewish religious duty stopped in most cases by the legal fiction of corporate formalities.

    And as regards your bank example, I think the clear holding of Hobby Lobby would easily lead to an exemption from federal banking regulations requiring you to be open on yom tov, if asserted by a closely held frum owned bank.

  15. Steve Brizel says:

    The bottom line is that the case was decided on statutory ( RFRA) ground as opposed to free exercise ( constitutional) grounds, which is how the Supreme Court prefers in many cases.

  16. Tal Benschar says:

    “I think what most readers do not know is that banks (and a few other businesses) are already subject to regulatory rules about when they can open and close — banks may not close on Jewish holidays like Pesach and Rosh Hashanah — and they are not exempted from this rules in any way a all.”

    The point is that under RFRA as interpreted by Hobby Lobby, a frum-owned bank (if there are any such) would at least have a claim for exemption. It might still lose, if the Govt. can show a compelling interest in that rule, but at least it has a colorable claim. Under the dissent, the claim would not even get off the ground.

    And as the regulatory state expands, which it seems to be doing under the current political climate, there will be more and more cases of friction between the rules of the state and the rules of halakha.

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