The Center for American Progress (CAP) sees the problem with religious freedom after the Hobby Lobby court decision in 2014. Religious freedom is being used as a weapon to discriminate. CAP has some ideas on how to restore the religious freedom balance. The ideas seem like a good start.
First, as written in an earlier appeals court ruling against Hobby Lobby’s claims, there had not been “any case … in which a for-profit, secular corporation was itself found to have free exercise rights.” Second, appeals for exemption from federal laws under RFRA generally stem from individuals seeking protection for religious belief or practice. In Hobby Lobby, the plaintiffs were seeking exemption from a law—the mandated provision of contraception coverage in employee insurance policies—in order to prevent someone else from making a choice that the plaintiffs deemed religiously unacceptable. This latter distinction, what legal scholars Douglas NeJaime and Reva Siegel called a “complicity claim” in a recent Yale Law Journal article, raises a particular challenge that illustrates just how deeply the Hobby Lobby decision cuts at the fabric of the role of religious liberty in America’s pluralistic democracy.
In a pluralistic society such as ours, the interests of multiple parties are sometimes in competition, and courts play a key role in sorting out these conflicts. As a matter of law in religious liberty cases, this requires striking a balance that avoids causing others to bear the burdens of one’s own chosen religious beliefs and practices. According to NeJaime and Siegel, “Complicity claims are … about how to live in community with others who do not share the claimant’s beliefs, and whose lawful conduct the person of faith believes to be sinful. Because these claims are explicitly oriented toward third parties, they present special concerns about third-party harm.”
This report argues that the Hobby Lobby decision represents a dangerous precedent that enables third-party harm.
A number of legal and policy changes are needed to restore religious liberty in America so it is once again consistent with the nation’s history and fundamental values—as well as public opinion. Building on the recommendations outlined in an earlier CAP report, “A Blueprint for Reclaiming Religious Liberty Post-Hobby Lobby,” these changes include:
Amending the federal RFRA to prevent third-party harm
Passing comprehensive nondiscrimination protections for LGBT
Americans at the local, state, and federal levels
Passing state laws to increase access to preventive health care services
The best way to restore religious freedom is to overturn the Hobby Lobby decision, but CAP’s ideas seem like a good start.