One sentence can save us from thoughtcrime if SCOTUS uses the key

An excellent political analysis of the law cited by Hobby Lobby in its objection to complying with Obamacare’s (officially known as the ACA) birth control provision was published by msnbc.

Fox News made a glancing reference to the law, known as the Religious Freedom Restoration Act of 1993 (RFRA), preferring to confine its article to current issues versus historical intent.

I went back to the language of the law itself.

In an aside, it is stunning that the law being used to unravel possibly a large swath of Obamacare’s mandate is less than two pages long. The ACA itself claims at least 500 times as much wood pulp were you to print it.

42 USC 21B section 2000bb is very simply stated.

Its findings, in full are:

The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
(emphasis mine)

The law does not provide a definition for “compelling”. It does define “government”, “covered entity”, “demonstrates”, and “exercise of religion”.

The provision of the law is one sentence:

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
The one exception has two parts:
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(emphasis mine)

All the arguments blowing with hurricane force around the Supreme Court’s potential rulings in this case would seem to center around the question: “what is compelling for the government to substantially burden religious freedom?”

I realize that the press and many of the arguments in the case have latched on to Hobby Lobby’s standing as a corporation to claim relief. The lower courts have upheld that status, and the willingness of the Supreme Court to hear to case, to me, might indicate that they will tackle the central issue versus simply declaring corporations to be outside the law’s protection. I may be wrong on that, but the Court would be doing a disservice to itself and previous court rulings to take such a back door exit.

There’s also the argument of “substantial burden.” I believe that Hobby Lobby can demonstrate this because its business model is dependent on hiring and retaining talented individuals at its stores-the company exceeds minimum wage requirements (by a large margin) for even the most junior positions, and offers health, dental, and retirement benefits to all employees. The ACA fines for offering health insurance that don’t meet the mandate far exceed the fines for not offering health coverage at all. In fact, a company will pay 18 times more to violate the coverage provisions as it would paying the tax and leaving their employees on their own (or to the exchanges).

The Court could take another back door and simply send the ACA back for overhaul by stripping the fines out and asking Congress to make the religious burden more neutral in that manner. This would have the effect of allowing companies to offer whatever coverage they want under the protection of RFRA and pay the same fine as offering no coverage at all. This would be in keeping with the “least restrictive” exception of the RFRA, upholding the law and the ACA at the same time.

I personally hope that the Court takes on the issue of “compelling” instead. Is it in the government’s compelling interest to mandate that all healthcare insurance coverage have certain elements? If it is, then how? What is the test for the government to claim something is “compelling”? Is a woman’s right to obtain birth control, before, and after conception, without paying for it something that the government can truly find “compelling” to the point of burdening a Constitutionally protected right to the practice of religion?

Wouldn’t that mean that the government could impose price controls on the companies that manufacture the birth control devices, morning-after pills, and contraceptives to make them affordable? Wouldn’t it mean that the government can compel retailers to sell those items at a loss, and to offer them for sale them even if they don’t wish to? Does it mean that the government can compel healthcare providers to offer these items and services free of charge?

Instead, the government claims it can compel a company through an insurance mandate to pay a third party (insurer) to offer coverage for the item. Seems kind of overly-complex if the government really has a compelling interest in a woman’s right to those products and services.

The final point of the RFRA is buried (in a 1 1/2 page law, not too deeply) in the applicability section.

(c) Religious belief unaffected
Nothing in this chapter shall be construed to authorize any government to burden any religious belief.


This would mean that the Court should not interpret this law to give license to government to burden one particular religious belief over another. It also can mean that the government can burden an exercise of religion but not the belief itself. In effect, it’s a protection again “thoughtcrime”.

The little subsection (c) might be the fulcrum on which the ACA is catapulted into the trash.

Is it an exercise of religion for a company, or a person to NOT engage in compelled behavior, or is it a belief? I suggest that the Green family, owners of Hobby Lobby, refuse to comply with the ACA’s birth control coverage mandate because of a belief. They are not exercising a practice of religion, forcing employees to worship a specific deity or take part in religious rites. They are expressing their religious beliefs.

The expression of those beliefs cannot be burdened by government in any way if it doesn’t involve the exercise of religion, and the RFRA amplifies and reinforces that Constitutional right. In fact, the RFRA was crafted to protect the exercise of religion (read the msnbc analysis and the case law cited in the findings)

If the Court rules that the government can assert its power to compel a company or individual to act in contravention of their religious beliefs, and in effect strikes down RFRA, then the government would have the unfettered ability to prosecute thoughtcrime. If your beliefs don’t line up with the government’s compelling interests, then you lose, you are forced to subvert your beliefs to the government’s edicts.

The Court should belly up to the bar, and take the front door, and close it on the government’s ever advancing intrusions into every citizen’s right to direct their affairs, express their beliefs, and offer their goods and services without submitting to the tyranny of thoughtcrime.

Maybe tiny 42 USC Ch 21B sec 2000bb(3)(c) will be the key to that door.