AU originally supported the federal RFRA, which Congress passed in 1993 in response to the 1990 Supreme Court case, Employment Division v. Smith.  In that case, the Court announced it would no longer apply the highest level of scrutiny to cases involving the free exercise of religion.   AU and other supporters of RFRA believed the bill would simply restore protections for religious minorities by reinstating the higher pre-Smith standard.  The federal RFRA was meant to be a shield to safeguard religious freedom, not a sword to be used to harm others.  Because people and corporations have been trying to use RFRA in recent years as a way to take away the rights of someone else, however, AU believes RFRA must be fixed. 

In recent years, some have attempted to use RFRA in ways its supporters and sponsors never would have imagined.  At the time of passage, no one envisioned that RFRA would be used to try to trump non-discrimination, public health, and safety laws.  Yet, RFRA has taken on a new life.  For example, the Supreme Court, in Hobby Lobby, ruled it could be used to allow for-profit corporations to sidestep the contraception mandate.  The Bush Administration used RFRA to justify policies permitting federally-funded employment discrimination.  And now, individuals and businesses are trying to use RFRA to circumvent LGBT non-discrimination protections. 

Legislators in the states are also pushing to pass new state RFRA laws.  Some of the bills have the same language and flaws as the federal RFRA.  Some state legislatures, however, are introducing bills with significantly different and broader language than the federal RFRA, making their meaning uncertain and their consequences even more far reaching.  As compared to the federal statute, these “super-RFRAs” greatly reduce the burden necessary for an exemption and heighten the compelling interest needed by the government to justify its action.  This could potentially ensure that anyone claiming a religious burden—no matter how small, and no matter who else’s rights will be infringed—will get an exemption from that particular law.  With this broad language, super-RFRAs might be used to justify almost any type of discriminatory action.

Contraception Mandate

The contraception mandate, as set forth in the regulations implementing the Affordable Care Act (ACA), requires that employers who choose to offer employee health insurance plans must provide coverage for contraception. This mandate, despite religious exemptions and accommodations for certain employers, has been a source of contention for the Religious Right.  Employers opposing the mandate have used RFRA to deny women contraception coverage, claiming the mandate substantially burdens their religious beliefs.

The Obama Administration has revised these regulations many times to accommodate religious organizations with objections to the contraception mandate.  As soon as the Administration announced the regulations would contain a religious exemption, AU began advocating for a narrow one.  Indeed, AU’s legislative department has submitted comments to the Administration each and every time it has proposed a rule change. AU’s concern was, and continues to be, that the broader the exemption, the less connection it will have to lifting a religious burden and the more harm it will cause to women seeking contraception.

The regulations, as adopted in July 2013, completely exempted houses of worship from the contraception mandate and granted certain religious non-profits an accommodation. Nonetheless, some non-profit and for-profit corporations challenged that regulation in court, claiming that, in accordance with the federal RFRA, they should also be fully exempt from the contraception mandate.  AU’s legal department filed an amicus brief in the notable case of Burwell v. Hobby Lobby in support of the government and its effort to uphold the mandate on for-profit corporations. On June 30, 2014, the Supreme Court issued its opinion in Hobby Lobby, holding that closely held for-profit corporations were covered by RFRA and these corporations do not have to provide health care coverage for contraception if their owners claim doing so would violate their religion.

The cases in which non-profit organizations claim their accommodation is insufficient are still winding their way through the courts.  In the meantime, the President has proposed yet another set of regulations to respond to Hobby Lobby and the non-profit cases.

In the aftermath of the Hobby Lobby ruling, AU signed-on as an original supporter of S. 2578, the Not My Boss’ Business Act. This bill, formally known as the Protect Women’s Health from Corporate Interference Act, would be a significant step toward overturning the immediate effects of the Hobby Lobby case and would ensure access to healthcare services guaranteed under federal law by prohibiting employers from denying their workers specific health benefits. In short, the Act would prohibit employers from discriminating against their women workers by denying them medical coverage in the name of religion.

AU also continues to work with the legislature to find ways to correct the troubling decision in Hobby Lobby, preferably by amending RFRA itself.

Additional resources:

  • AU comments submitted to HHS concerning the religious exemption and accommodation to the contraception mandate
  • AU talking points explaining  Hobby Lobby and our support of the Not My Boss’ Business Act
  • AU letter supporting the Not My Boss’ Business Act

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