Blowback for the Jewish Community?
Jeffrey I. Pasek spoke recently to a large and completely engaged audience at Congregation Adath Jeshurun in Elkins Park about the Religious Freedom Restoration Act (RFRA) and why Jews should care about it. Pasek, a partner in the Labor & Employment Group of the law firm Cozen O’Connor and a longtime leader in Jewish communal affairs, explained the modern legal history of religious freedom under the First Amendment and its statutory sequel, the RFRA. He discussed the Supreme Court’s unexpected expansion of this law and the potentially troubling consequences it could have.
Pasek co-chairs the Jewish Social Policy Action Network’s (JSPAN) Church and State Policy Center, which has filed numerous amicus curiae briefs (briefs filed by non-parties with significant interest in particular cases) in First Amendment religion cases. He serves on JSPAN’s board and was the organization’s first president. In over 35 years in Jewish communal service Pasek has been a national vice president of the American Jewish Congress and president of its Pennsylvania Region. He is on the board of the Jewish Council for Public Affairs and the Jewish Community Relations Council of Greater Philadelphia.Pasek began his presentation by laying out the modern constitutional history of the right to religious freedom in America. He explained that prior to the 1960’s, the First Amendment was interpreted to require only limited accommodations by the government for religious practices. If a law had a reasonable purpose and was written neutrally — not singling out any particular religion — it would be upheld despite some incidental impact on an individual’s religious practices.
However, beginning with the 1963 case of Sherbert v. Verner, involving a Seventh Day Adventist’s refusal to work on Saturdays, the Supreme Court adopted a different approach, one that reflected the judicial reasoning in the civil rights cases of that era. Under Sherbert, if a government action penalized individuals for carrying out their sincere religious beliefs, the government was required to show a “compelling interest” in the particular law or regulation and to demonstrate that no less burdensome method would achieve its purpose. Otherwise, the individuals’ First Amendment rights would prevail.
Then, in 1990, the Supreme Court issued a ruling that represented a marked change in its approach to the constitutional analysis of First Amendment religion cases. In the case of Employment Division, Department of Human Resources of Oregon v. Smith, two Native Americans were terminated from their jobs because they engaged in a religious ritual that required them to take the drug peyote, which produces hallucinogenic effects when consumed. The men were denied unemployment compensation because their action violated Oregon’s drug laws; they responded by suing the state. The Supreme Court held, in an opinion written by Justice Scalia, that the State of Oregon had no obligation to create an exception to a neutral law to accommodate individual religious beliefs. The government was not required to demonstrate a “compelling interest,” even though the law impacted a religious practice.
In the resulting outcry, the Jewish community joined with other religious groups to support a legislative correction that reinstated the judicial practice prior to Smith. In 1993, a new law was passed, the Religious Freedom Restoration Act, or RFRA, which received overwhelming support in both houses of Congress. As Pasek noted in his presentation, Marc Stern, formerly of the American Jewish Congress, was heavily involved in drafting this new law. Although the RFRA was eventually ruled unconstitutional when applied to the states, it continues to apply to actions taken by the federal government. In fact, the reach of religious protection was expanded in 2000 through the enactment of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which brought religious corporations — churches and schools, for example — under additional protection in land use cases.The controversial 2014 case of Burwell v. Hobby Lobby Stores, Inc. added a new chapter to RFRA: the case raised the question whether businesses could assert the religious rights of their owners to avoid legal obligations. Under the Affordable Care Act, large employer health plans must include contraceptive and other reproductive services. Hobby Lobby, a business corporation with thousands of employees, argued that providing insurance for certain types of contraception violated the religious beliefs of the company’s owners. The Supreme Court ruled in Hobby Lobby’s favor, concluding that a closely held business corporation can have religious beliefs that are protected by the RFRA and will prevail over a neutral general law.
Pasek noted that other prospective cases may carry the Hobby Lobby principle even further. A baker refuses to provide a cake for the marriage of a gay couple, for example, or a caterer refuses to rent them a hall. Seemingly the only limit to this line of argument is the resourcefulness of the religionists and their lawyers. Does paper money and coinage bearing the words “In God We Trust” impose an unlawful burden on atheists? When the currency is worn out, is its destruction a sacrilege, and if so, are we all contributing to it?
Such unanticipated results of the RFRA would be very offensive to many in the Jewish community. According to Pasek, Congress is not likely to rein in claims of religious rights by amending the RFRA. He added, “You need to be careful in any challenge to other people’s religious feelings. There is always the possibility of a backlash.”