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Hobby Lobby aftermath spawns disagreement over future of religious freedom law

Opponents of the Supreme Court's June 30 ruling supporting the religious freedoms privately held corporation's owners have when it comes to a contraceptive mandate are lobbying to repeal the 1993 Religious Freedom Restoration Act.
Mark A. Kellner, Deseret News Modified: July 7, 2014 at 7:08 pm •  Published: July 8, 2014

WASHINGTON — Despite calls to repeal the 1993 Religious Freedom Restoration Act, commonly known as RFRA, the bill's original sponsors in Congress remain opposed to changing the landmark religious liberty bill. The 21-year-old statute was the linchpin of last week's Supreme Court decision involving privately held Hobby Lobby Stores, Inc.

According to Matthew Harakal, spokesman for Sen. Orrin Hatch, R-Utah, the senator "helped write RFRA and enact it into law, so no, he does not think it should be narrowed or repealed."

Rep. Bob Goodlatte, R-Virginia, chairman of the House Judiciary Committee also stands by the bill, spokeswoman Beth Breeding said: "Chairman Goodlatte was an original cosponsor of the Religious Freedom Restoration Act. He continues to support this law."

On the other hand, in a statement to the Deseret News, Sen. Patrick Leahy, D-Vermont, who chairs the Senate Judiciary Committee, said he is willing to consider changing RFRA, though not mentioning it by name: "The fact that five Supreme Court justices in the Hobby Lobby decision have again found that somehow corporate rights trump individual rights is something that all Americans should be concerned with. I know that many Senators are considering the best fix to this erroneous decision and I look forward to reviewing any legislation to respond to the Supreme Court’s decision to grant corporations these new rights," he said.

At least one other Democrat — Sen. Patty Murray of Washington — hinted at taking on RFRA's freedom-of-conscience protections when she reacted to the Hobby Lobby ruling: "Since the Supreme Court decided it will not protect women’s access to health care, I will," Murray said in a June 30 statement. "In the coming days I will work with my colleagues and the (Obama) Administration to protect this access, regardless of who signs your paycheck."

Reaction to even a veiled suggestion of changes to the Religious Freedom Restoration Act was quick and strong: "Changing RFRA because some disagree with one particular application of the law would set a dark precedent by undermining the fundamental principle of religious freedom for all, even for those whose religious beliefs may be unpopular at the moment," said the signers of a joint letter to House Speaker John Boehner (R-Ohio), Majority Leader Rep. Harry Reid (D-Nevada); House Minority Leader Rep. Nancy Pelosi (D-California) and Minority Leader Sen. Mitch McConnell (R-Kentucky). "Congress has never passed legislation with the specific purpose of reducing Americans’ religious freedom. It should not consider doing so now."

Some opponents — including a legal scholar and secularist lobby group — of the Supreme Court's June 30 ruling are lobbying to repeal RFRA, which passed both houses with near-unanimity and was quickly endorsed by then-President Bill Clinton. Congress reauthorized the measure in 2000.

RFRA was key to the Hobby Lobby high-court decision, where a 5-4 majority ruled religious liberty protections applied to a closely held corporation's owners. The Supreme Court weighed whether a federal mandate of insurance coverage for contraceptives, which may induce abortions — drugs objected to by the Christian owners of Hobby Lobby and Conestoga Wood Specialties, two privately held corporations, on religious grounds — passed RFRA's requirement that the government use the "least restrive means" to achieve its objective.

Justice Samuel A. Alito said the Department of Health and Human Services mandate failed that test, since the government made provisions for faith-based nonprofits to be exempted from the requirement, with HHS providing (and, presumably, paying for) the disputed items — a compromise that was not offered to Hobby Lobby or Conestoga Wood Specialties.

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