Is “Religious Freedom” Impossible After Hobby Lobby?

Last week the Supreme Court succeeded in deciding a case that it said was too easy. The case, Holt v. Hobbs, was brought by an Arkansas inmate seeking an exemption from Arkansas Department of Correction regulations prohibiting beards, except for ¼-inch beards worn by those with diagnosed skin conditions. Gregory Houston Holt, who goes by Abdul Maalik Muhammad, claimed that although his Muslim faith required him not to trim his beard at all, he was willing to compromise at ½-inch.

“You’re really just making your case too easy,” Chief Justice Roberts told Muhammad’s lawyer at the opening of oral arguments in October 2014, just before Justice Alito proceeded to make short work of the state’s security concerns about inmates smuggling contraband under such modest facial hair or mischievously evading guard identification by shaving (especially given that the Department permits various hairstyles as well as moustaches). Justice Scalia seemed to agree, suggesting that the court dismiss the case and wait for one that presented a thicker tension between individual rights and prison security. “I don’t want to do these cases half-inch by half-inch.”

The Court found that Arkansas was imposing a “substantial burden” on the plaintiff’s “religious exercise” while failing to demonstrate that the burden was the “least restrictive means” of furthering some “compelling governmental interest,” in violation of the Religious Land Use and Institutionalized Persons Act of 2000, or RLUIPA. The decision was unanimous.

The ease of Holt may signal the solidifying of the Court’s doctrine of “religious freedom”—as noted by Kara Loewentheil here on RD—even as fundamental questions and concerns about this doctrine increasingly convulse legal scholarship and practice.

Holt, of course, comes in the wake of the Hobby Lobby decision, which extended the protections of the Religious Freedom Restoration Act (RFRA) to “closely-held” for-profit corporations. There, the Green family members, owners of Hobby Lobby, believed that “providing insurance coverage for items that risk killing an embryo” made them “complicit in the practice of abortion.”

The Court found that the choice between this complicity and paying sizable fines under the Affordable Care Act constituted a substantial burden, unperturbed by the reality that of the four methods of contraception in question, none has been shown indisputably to prevent the implantation of a fertilized egg, and two of them have been shown indisputably not to. What mattered was that the belief was sincerely held.

Justice Alito’s opinion did clarify a number of other things that are not relevant to assessing a claim of “substantial burden.” First, it is not relevant that “alternative means of practicing religion” are available. The state does not get to decide whether a claimant’s religious impulses can be satisfied through some other outlet. Second, it does not matter whether the practice is considered religiously obligatory or voluntary. With RFRA and RLUIPA, Congress protected “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Finally, protection is “not limited to beliefs which are shared by all of the members of a religious sect.” Idiosyncratic beliefs—and beard lengths—can be burdened no less than the orthodox.

What would not constitute a substantial burden? And who—or what—would not be entitled to this protection, a troubling question posed in Justice Ginsberg’s Hobby Lobby dissent? Any person who professes a “religious belief”? What about the “pro-life” organization March for Life? As a nonreligious nonprofit, March for Life’s opposition to abortion “includes opposing coverage for abortion or abortifacients in their health insurance plan,” and it “only hires employees” who oppose abortifacients, according to a complaint filed with the U.S. District Court for the District of Columbia.

One preeminent scholar of religion and the law, Winnifred Fallers Sullivan, has declared religious freedom “impossible” (like Scalia, Sullivan is not one for half measures). What to make of this and related challenges will be the topic of my coming posts.

RD contributing editor Austin Dacey will be writing a series of posts in the coming months as part of a joint project between The Immanent Frame and Religion Dispatches made possible by the generosity of the Luce Foundation.

  • Jim Reed

    I guess the question is should Hobby Lobby have a veto over laws so that it doesn’t have to support contraception or other women’s health needs? A parallel question might end up being should liberal religions have a veto over paying taxes that support Republican wars?

  • GeniusPhx

    now we need a case concerning a satan worshiper who doesn’t want to obey a christian law in a christian town, and see if the law applies to him also.

    hobby says that any crazy person can believe whatever they want and call it ‘religion’ and get a away with it.

  • Tige Gibson

    It’s a mistake to take their word that freedom is the heart of the matter. They don’t consider it a slippery slope that privileging one religious view could lead to theocracy. For them, these problems exist because it’s not a theocracy already. Government is the definitive instrument for stopping declining religious affiliation.

  • Tige Gibson

    All the Christian townfolk march on a Satan worshipper’s home with torches and pitchforks. What a black hole of irony.

  • EyeTee

    Unfortunately, I don’t trust the court to see that. This Court has no problem privileging religious beliefs of some over others. See, for example, the case of the town of Greece last year , that allowed predominantly CHristian prayers before town meetings. In Winter Garden FL the city council expelled a man who refused to stand for the pledge/invocation. Religious liberty is under threat only it’s not the liberty of the Christians.

    When the Satanic Temple did an FOIA regarding their desire to put up a statue in Oklahoma, we learned that the majority of people who responded felt that religious freedom only applied to Christians. REported here on RD.

    Quote: “But most callers essentially argued that the Ten Commandments should be allowed and the Satan monument forbidden because the framers of the Constitution founded the United States as an explicitly Christian nation. …Because the authors of the messages fail to understand the difference between government endorsement of Christianity and the personal liberty of Christian citizens, Constitutional issues surrounding the separation of church and state are interpreted as demonic attacks perpetrated by “God haters.””

    http://religiondispatches.org/satanic-foia-reveals-deep-confusion-about-1st-amendment/

  • Jim Reed

    What would government do? Put heretics in prison?

  • Tige Gibson

    Restrict benefits to people who have signed loyalty statements of faith. Right now it seems like they want to eliminate benefits, but actually they want churches to be the ones who distribute them.

  • William Anderson

    So..If my religion views marijuana as holy? (Rastafarians) views African Americans as inferior and I don’t want to hire them ? (Christian Identity) believes in polygamy and pre puberty marriage? (Mormon off-shoots)

  • Kelly

    Okay, so the courts say we can’t burden “idiosyncratic” beliefs. But if your religious belief actually doesn’t come from anything regarding your religion, like the actual texts you claim is the Word of God, how can one claim religious anything? Take, for example, pro-life stuff: none of it’s in the bible, the constitution, world history or law, etc. Since it doesn’t come anywhere but from their own asses, why should we care?

  • Folkgirl

    Simply the fact that science disagrees with Hobby Lobby’s stance that the methods of contraception in question are abortifacients should have been enough send them packing. If they are not, in fact, abortifacients then HL doesn’t have a case – the contraception doesn’t violate their belief that abortion is wrong. Considering the fact that it doesn’t take much to get a group of friends together and call yourself a “church”, what’s to stop an employer from claiming that the “religion” he/she believes in requires them to work until the day they die and doesn’t believe in retirement, arguing that being forced to deduct Social Security tax from their employees’ paychecks violates their religious freedom? Just because it lowers the monthly amount an employee will get from the gov’t when they retire doesn’t harm the employee – if they believe in relaxing during their twilight years, then they can set that money aside themselves. It’s a small church, so allowing them this particular religious exemption wouldn’t impact Social Security’s ability to pay those who currently receive the benefits. In reality, we all know the “religion” is a sham made up of conservatives who want to privatize Social Security, but it’s now trendy to use religion to advance political agendas. Slippery slope indeed.