The majority opinion handed down today makes several important points worthy of close attention.
First, the Court’s decision affirms the central importance of the Religious Freedom Restoration Act of 1993 [RFRA]. Interestingly, that Act was made necessary by the Court’s own 1990 decision in Employment Division v. Smith, in which the majority opinion had been written by Justice Antonin Scalia, who joined with Justice Alito in the majority for Hobby Lobby. Responding to that decision, Congress passed RFRA, demanding that any law or policy of the federal government that would violate a citizen’s religious convictions must pass two key tests: It must meet a compelling state interest, and it must do so by “the least restrictive means of furthering that compelling state interest.” As Justice Alito stated, Hobby Lobby and Conestoga Wood did not protest against the compelling state interest of the contraception coverage ”” only against the four specific birth control products that were mandated. Justice Alito and the majority rightly concluded that the Obama Administration had utterly failed the second test. There were any number of alternatives the administration could have taken that would have accomplished its goals without burdening conscience.
What makes this especially important is the fact that RFRA passed in Congress without a single dissenting vote in the House of Representatives and by a 97 vote majority in the Senate. RFRA had massive support within Congress and public opinion at large. And yet, just 21 years later, it seems that many Americans would gladly violate the religious liberties of some in order to advance liberal social policies for others. Today’s decision underlines the importance of RFRA, but it also demonstrates the massive task of defending religious liberty that lies ahead.