Hobby Lobby case based on 1993 law that had bipartisan support

Kansas University constitutional law scholar Rick Levy said Monday the U.S. Supreme Court’s decision in the Hobby Lobby contraception case shows that an unwritten law — the law of unintended consequences — is alive and well.

The court ruled that the owners of private companies can object on religious grounds to providing insurance covering birth control for female employees.

The court’s conservative bloc based its decision on a 1993 federal law called the Religious Freedom Restoration Act.

That measure was passed with strong, bipartisan support and signed into law by then-President Bill Clinton. Liberals and conservatives joined forces after a 1988 Supreme Court decision that upheld the state of Oregon’s refusal to give unemployment benefits to two American Indians who were fired from their jobs at a drug rehab clinic after they tested positive for using peyote. They claimed peyote was commonly used for religious purposes.

“So, RFRA was seen as protecting religious minorities,” Levy said.

Fast forward, 21 years, and RFRA was the basis for the 5-4 court majority to upend a key component of President Barack Obama’s Affordable Care Act.

Under RFRA, the federal government cannot pass a law that infringes on a sincerely held religious belief unless the government shows a compelling reason to do so, and if it does, then the law must be applied in the least restrictive way possible.

In the Hobby Lobby case, the court ruled that RFRA applied to closely held private corporations.

Hobby Lobby’s owners, who are evangelical Christians, said the ACA’s requirement that the arts and crafts company provide insurance that covered certain methods of birth control contradicted their deeply-held religious beliefs.

“The court did not say that Hobby Lobby had a constitutional right not to provide contraceptives. It only said that RFRA applied to corporations when they are closely held,” Levy said.

While conservative groups praised the decision, Levy said it may produce some sticky legal situations down the road.

The government did not challenge the owners of Hobby Lobby on their deeply held religious beliefs, but as more companies seek exemptions through RFRA the sincerity of those religious beliefs may be fought over in court.

“There are going to be a lot of companies that will be claiming a lot of religious exemptions, either sincerely or trying to get a competitive advantage, and it will take some time to sort it all out,” he said.