4A. RFRA Strict Scrutiny: The Slippery Slope Question

(For an introduction to this series of posts, see here.)

So far, I’ve argued that Hobby Lobby likely has a good case as to the claim that the employer mandate substantially burdens religious exercise, because the mandate requires Hobby Lobby to do something — fund potentially implantation-preventing contraceptives — that Hobby Lobby’s owners believe is religiously forbidden. But of course not all substantial burdens on religious exercise require an exemption under RFRA. RFRA provides that “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person … is the least restrictive means of furthering [a] compelling governmental interest.” And this “compelling interest test” (also known as “strict scrutiny”) seems to refer to the test “set forth in prior Federal court rulings” decided under the Free Exercise Clause during the Sherbert/Yoder era.

This, I think, is the most unpredictable part of the Hobby Lobby case, because prior rulings are largely unclear on what constitutes a “compelling governmental interest,” and what the “least restrictive means” requirement means. Moreover, while the strict scrutiny test in race and free speech cases has generally been seen as “strict in theory, fatal in fact” (Gerry Gunther’s phrase), almost always invalidating the government law, this hasn’t been so in religious exemption cases.

Larry Sager and Chris Eisgruber labeled the religious exemption strict scrutiny test “strict in theory, feeble in fact,” and while the Court’s one RFRA case — Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) — seemed to use strict scrutiny in a moderately muscular way, the most we can say is that religious objectors will sometimes win under the test and sometimes lose. In the coming posts, I’ll try to mine the religious exemption precedents for what insight they can give us; but it isn’t much.

Let me begin, though, with a couple of posts on general RFRA principles, the first being how RFRA deals with the slippery slope question. When I’ve discussed religious exemption claims, people often object to them because of worry about the slippery slope, or, if you prefer, the supposed absence of limitations on the legal principle. If employers can refuse to comply with employer mandate as to implantation-preventing contraceptives, what if they claim a right to start firing people who they think use such contraceptives? What if they refuse to hire women? What if they refuse to hire blacks? What if they refuse to pay taxes altogether, on the grounds that paying taxes is complicity with a fetus-slaughtering government?

These are perfectly sensible arguments, and indeed versions of these arguments were used by the majority in Employment Division v. Smith (1990), when the Court held that the Free Exercise Clause didn’t authorize courts to carve out religious exemptions from generally applicable laws. “The rule respondents favor,” Justice Scalia’s majority opinion reasoned, “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”

To be sure, the majority didn’t think that courts would necessarily accept all those arguments. “[We do not] suggest that courts would necessarily permit harmful exemptions from these laws (though they might).” Still, the majority thought it would be bad to have “courts … constantly be in the business of determining whether the ‘severe impact’ of various laws on religious practice … suffices to permit us to confer an exemption. It is a parade of horribles because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.” I generally take such arguments quite seriously myself, see this article supporting Smith and this article about slippery slope arguments generally.

But Congress rejected these arguments in enacting RFRA. RFRA is Congress’s instruction to the courts: carve out religious exemptions, and don’t worry too much about the slippery slope — the exception for laws that are the least restrictive means for serving a compelling government interest will suffice to prevent the slippage. (Moreover, any slippage that Congress sufficiently dislikes could be cured through a new statute that exempts some exemption claims from RFRA’s scope, though Congress didn’t expressly say this in the RFRA text.) And RFRA is also Congress’s instruction to the courts to “regularly balance against the importance of general [federal] laws the significance of religious practice,” even if courts might be reluctant to do this on their own, using only the Free Exercise Clause as support.

In Gonzales v. O Centro, the Court unanimously embraced this principle (some paragraph breaks added):

[T]he Government’s argument for uniformity … rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law.

The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” …

We reaffirmed just last Term the feasibility of case-by-case consideration of religious exemptions to generally applicable rules. In Cutter v. Wilkinson (2005), we held that the Religious Land Use and Institutionalized Persons Act of 2000, which allows federal and state prisoners to seek religious accommodations pursuant to the same standard as set forth in RFRA, does not violate the Establishment Clause. We had “no cause to believe” that the compelling interest test “would not be applied in an appropriately balanced way” to specific claims for exemptions as they arose. Nothing in our opinion suggested that courts were not up to the task….

We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. See Smith. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.

So whatever arguments the Court will entertain in Hobby Lobby, the argument that this exemption request should be rejected because of the slippery slope to (say) refusals to hire women or refusals to pay ordinary taxes is unlikely to work. The Court has already used the compelling interest test to reject claimed exemptions from tax obligations (United States v. Lee (1982), as interpreted by Hernandez v. Commissioner (1989)). The Court has held that there’s a compelling government interest in banning race discrimination in government-supported education (Bob Jones Univ. v. United States (1983)); lower courts have held the same as to sex discrimination in employment.

These lines are hard to draw in any principled way. Indeed, RFRA’s unelaborated reference to “compelling governmental interests” leaves open the door to judges considering their own moral judgment in drawing the lines. This is something many observers and many judges might be hesitant about, though in fact judges necessarily do consider their moral judgment in developing common-law tort, contract, and property rules (and those common-law rules are similar to RFRA exemptions in that judges have the first word as to those rules but legislatures can revise the judge-made rules). But, in any event, that’s what judges are in effect instructed by Congress to do under RFRA.