After Hobby Lobby, What Now?

The Supreme Court's ruling in Hobby Lobby this week opened up a potential free-for-all for closely held corporations to challenge all types of federal government regulations in the name of the owners' religious beliefs.  (The only requirement: the reg has to pose a substantial burden on the belief.  But we saw in Hobby Lobby itself how easy it is to meet that standard.)  If so, those regs would be subject to RFRA's strict scrutiny test.  That test requires the government to show that its regulation is the least restrictive way that it can achieve its compelling government interest--a tall order, indeed, and one that the government in other contexts can almost never satisfy.

In other words, the ruling seems to invite a religious exception for unknown numbers of federal laws.  The majority dismissed this worry and did its best to cabin the ruling, but in truth only time will tell how far Hobby Lobby reaches.  We can expect to a flurry of cases testing this.

So: What now?

ConLawProfBlog's own Ruthann Robson answers the question in her excellent post over at The London School of Economics Blog.  Robson says that Congress has three ways to undo the Hobby Lobby ruling: (1) redefine "person" in the Dictionary Act to exclude for-profits; (2) change the level of scrutiny in RFRA (to rational basis review, consistent with the First Amendment standard); or (3) repeal RFRA entirely.

You might say that these options are unfriendly to religions.  But Robson tells us why it's really the ruling itself that's religion-unfriendly.  Robson argues that the ruling actually creates a disincentive for Congress to grant exemptions or accommodations to federal laws for religious organizations.  That's becuase HHS's exemption for religious organizations (like Notre Dame, Little Sisters, and the like) was Exhibit A in the Court's conclusion that the so-called contraception mandate was not the least restrictive way for Congress to require insurers to provide contraception for women.  (After all, if Congress could create an exemption for religious organizations, there's no reason why it couldn't similarly create an exemption for closely held corporations with religious owners.  The fact that Congress had this alternative (and used it for religious organizations, but not for closely held corporations), according to the Court, shows why the so-called contraception mandate wasn't the best tailored way for Congress to achieve its goal.)

Robson's right.  And she's right in arguing that Congress was sloppy and short-sighted in enacting RFRA in the first place, and that now, after Hobby Lobby, it may wreak all sorts of as-yet-unknown havoc.  She concludes:

While Congress should take care when seeking to "reverse" a Supreme Court opinion, Congress did not take such care when ti sought to "overrule" Smith by enacting RFRA.  Now Congress should act quickly and firmly to remedy the problem it caused by enacting RFRA.  What Congress giveth, it can taketh away.  And it should.