We don’t regret a thing.
That’s the message from Jewish groups that helped draft a religious liberty law that the U.S. Supreme Court relied upon June 30 for its controversial Hobby Lobby ruling.
Many Jewish groups, mostly liberal ones, were alarmed by the 5–4 decision, which found that for-profit corporations could opt out of a contraception requirement of the Affordable Care Act because of the religious beliefs of the companies’ owners. Nevertheless, the Jewish groups said that they remain proud of the Religious Freedom Restoration Act of 1993, which the Supreme Court used as the basis for its decision.
“It never even crossed our minds that there could be an interpretation under RFRA that a corporation has a conscience,” said Nancy Kaufman, CEO of the National Council of Jewish Women.
“It’s just offensive,” Kaufman added. “Conscience and religious liberty rights belong to individuals, which is what RFRA is about.”
Kaufman’s group was one of about a dozen Jewish organizations that joined in a coalition of more than 60 religious and civil rights groups to help draft RFRA. Marc Stern, who co-chaired the committee that drafted the bill, said that the authors knew their legislation could prove controversial at the time.
Stern was then general counsel of the American Jewish Congress. Today, he is general counsel of the American Jewish Committee, which opposed the Hobby Lobby decision.
Even so, Stern said he thinks RFRA is a good law. “I don’t know why people think because there are hard cases, that the law is bad,” he said.
Stern recalled that the co-author of the act, Douglas Laycock, a professor at the University of Virginia School of Law, used to say, “Religious liberty is popular in the abstract, but much less popular when it comes to particulars.”
As an example, Stern said people are broadly supportive of religious liberty until they are faced with churches that provide sanctuary to illegal aliens, or with cases of animal sacrifice as part of the Santeria religion.
RFRA was drafted as an antidote to a 1990 Supreme Court decision against two Native Americans who were fired from their jobs for failing a drug test after they took peyote, a cactus that has psychedelic properties and is used for religious purposes. The justices ruled that the State of Oregon was correct to deny the men unemployment benefits.
Under RFRA, the government must show that there is a compelling interest in restricting religious conduct and that the law is applied in the least restrictive way.
Justice Samuel Alito, writing for the majority in the Hobby Lobby ruling, said there is a compelling government interest in giving women access to contraception. But he suggested that there were other ways the government could achieve that goal, such as paying for the coverage itself or requiring insurers to pay for the coverage.
As an example of the alternatives, Alito cited the tens of millions of workers who are exempt from the contraceptive mandate because their insurance plans were grandfathered in or because they work for churches or religious not-for-profits that are not forced to cover the contraception mandate.
In her dissent, Justice Ruth Bader Ginsburg said that this was the first time the court extended a religious liberty protection to for-profit companies. She warned that the ruling could pave the way for corporations to protest having to pay for vaccinations or to cover the minimum wage.
Many opponents of the ruling worried that it could be used as a platform by religious groups to deny benefits or services to same-sex couples. Reform Jewish leaders put out a joint statement warning that the ruling was “a disappointing setback for civil rights, women’s equality, and health care in the United States.”
One of those leaders, Rabbi David Saperstein, who directs the Religious Action Center of Reform Judaism, said that although he did not agree with the ruling, he remains proud of RFRA. Saperstein, who chaired the committee that advocated for the act on Capitol Hill, said that over the past 20 years, RFRA has helped many people to make religious claims “that are legitimate.”
Of course, many Jewish groups that were part of the RFRA coalition believe the Hobby Lobby claim was legitimate. Orthodox groups such as Agudath Israel of America, the Rabbinical Council of America and the Orthodox Union welcomed the Hobby Lobby ruling.
Nathan Diament, executive director of public policy for the Orthodox Union’s Advocacy Center, said that the main purpose of RFRA was to return religious freedom to the highest level of constitutional protection after it was undermined by the Oregon peyote case.
Diament said that the Hobby Lobby ruling had done that.
But he added that RFRA was also supposed to maximize the chances of a win-win resolution. According to Diament, Alito’s decision did just that by protecting the business owners’ religious liberties while ensuring that women are provided with contraception paid for by the government or by insurers. “Neither RFRA nor the Hobby Lobby ruling gives employers or anybody else an absolute trump card,” Diament said.
Both sides anticipate that legislation will be introduced as a result of the ruling. Rabbi Leonard Matanky, president of the RCA, said his organization believes that such legislation must take as its starting point an expansive view of religious liberty. Kaufman said her group has already begun work with the Coalition for Liberty & Justice, a group of 44 organizations, to push for legislation that will deny religious freedom exemptions to for-profit corporations.
However that legislation turns out, chances are that decades from now, an unforeseeable scenario will prompt a Supreme Court ruling that will send everyone hurtling back to the drawing board, once again.