Douglas NeJaime is a Professor of Law at the UCLA School of Law as well as the Faculty Director of the Williams Institute, an interdisciplinary research center focusing on issues of sexual orientation and gender identity in American law and public policy. NeJaime’s research examines the relationship between constitutional norms and family law in the United States, and he is the co-author of Cases and Materials on Sexuality, Gender Identity, and the Law. His public commentary on contemporary issues related to same-sex marriage and sexual orientation have also been featured in The New York Times, Los Angeles Times, NPR, and NBC News.

Cosmologics sat down with NeJaime to discuss his recent article co-authored with legal scholar Reva Siegel on the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby as well as what he sees to be the role that science, religion, and American culture have all played in the case and the Court’s decision.

Eric Stephen for Cosmologics

Cosmologics: Can you tell us a little bit about the Hobby Lobby decision? What do you see as the most significant aspects of the case or the precedent that it set?

Douglas NeJaime: A lot of people would probably focus on the fact that a for-profit corporation was able to assert a successful claim to religious exemption, but, in fact, I think that’s slightly less controversial than it’s made out to be. To my mind, the most important aspect of the case is its expansive interpretation of the Religious Freedom Restoration Act (RFRA). You can think of the RFRA analysis as having two main components. First, there is a burden on the claimant to show that the application of the law to the claimant substantially burdens religious exercise. Once the claimant shows that, the burden then shifts to the government to show that the application of the law to that claimant furthers a compelling governmental interest and is the least restrictive means of burdening that interest.

In Hobby Lobby, the owners of closely-held for-profit corporations asserted that providing insurance coverage for contraception in employee benefits, which was required under the Affordable Care Act, would violate their religious exercise by forcing them to facilitate the sinful conduct of their employees or the female dependents of their employees. The Court actually accepted this type of claim as a substantial burden on religious exercise and so shifted the burden onto the government. The Court then found that the law’s application was not the least restrictive means of achieving the government’s compelling ends.

That is a very expansive application of RFRA, one which uses a type of standard that, even if RFRA spoke in that language, the Court had never really applied in that particular way. But what’s most important to note about what the Court decided is the limit on accommodation that seems embedded in its decision; the Court said the reason that this was not the least restrictive means was that the government has available to it other ways of actually getting contraceptive coverage to the female employees and the dependents of employees without infringing on the religious beliefs of employers. Part of the premise was that the religious liberty claim can be accommodated without burdening the employers and so the government must take those steps. And so third-party harm seems to operate as a limit on accommodation.

Cosmologics: In your recent paper with Reva Siegel, you develop the concept of “complicity-based conscience claims.” What do you mean by this term, and how do you see the issues presented in Hobby Lobby as different from other conscience claims the Court has considered previously?

Douglas NeJaime: By using the term “complicity-based conscience claim,” we are trying to show how the claim is different in form from those that are the paradigmatic claims found in our religious liberty jurisprudence. It’s different in form because it’s about interacting with third parties. The claim is not, for instance, that the law is burdening my ability to engage in religious ritual, but instead that the law is requiring me to interact with other citizens in a way that I find to be offensive to my religious beliefs. These claims implicate third parties in a way that paradigmatic religious liberty claims do not.

 

These more recent efforts to create new state RFRAs or expand current ones are part of a much broader narrative in which religious liberty is seen as a way to curtail the implications of laws protecting LGBT people.

 

This is not to say that RFRA doesn’t include complicity claims. There were complicity claims before and RFRA certainly covers them. In a case called Thomas v. Review Board, for example, a claimant sought unemployment benefits after he was terminated for his unwillingness to take a job involved with munitions because he viewed that as making him complicit in war. His claim was accepted, and he was accommodated. Now, how is that claim different than the claims we see today? Well, the third parties we see affected by the complicity claims today are identifiable groups of citizens, and, more importantly, identifiable groups of citizens that the government has acted to protect.

The government actually legislated to protect women’s access to contraceptive coverage. The claim, then, is that the laws protecting that group of citizens infringe upon religious liberty, and so accommodating religious liberty affects the rights of that particular group of citizens. And it so happens that those groups of citizens are also involved in long-standing, society-wide debates about the morality and legality of the particular conduct. It includes groups of citizens who have been subordinated over time precisely because of the conduct that they’re engaging in, whether that’s contraceptive use, abortion, or same-sex sex.

Cosmologics: You also position Hobby Lobby within a broader “culture wars” context. Is this where you see the “culture wars” playing into the case and the Court’s decision?

Douglas NeJaime: I think so. When RFRA was passed in 1993, it was passed with bipartisan support. Over time, though, what happens is that the understanding of what RFRA is protecting changes, partly because of the debates around abortion, contraception, sexuality, and LGBT equality that are happening nationally. Religious liberty claims become a way to oppose laws protecting rights to abortion, contraception, and same-sex marriage. This is what Reva and I describe as the shift from speaking as a majority, seeking to enforce traditional morality, to speaking as a minority, seeking exemptions from laws that depart from traditional morality.

That is to say, if you’re not able to block the contraceptive coverage requirements, which Republicans tried to do as a political matter, and you’re not able to block same-sex marriage, then an alternative strategy is to argue based on religious liberty for exemptions from laws protecting that conduct. That is the argument that has been taken up by a lot of very talented and well-resourced lawyers and activists, and, increasingly, members of courts are showing more sympathy toward those claims.

Cosmologics: One concern that has been brought up in some legal circles is how the Court dealt with relevant scientific claims in this case. Do you think that the way the Court went about adjudicating when a scientific claim or broad medical consensus runs into tension with sincerely held religious beliefs was appropriate here?

Douglad NeJaime: Part of what is happening in this case is that we are dealing with a claim that is based on a religious belief that is not in accord with scientific claims. Part of the purpose of the Free Exercise Clause, actually, is to protect your ability to hold those beliefs, so in important ways, it is not for the government to use scientific facts to undermine your ability to hold religious beliefs that are contrary to those facts.

The problem becomes the extent to which those beliefs can be asserted in ways that actually block arguments about what the law does or does not do. What’s interesting in the Hobby Lobby case was that the religious claimants characterized the FDA-approved contraceptives as “abortifacients,” and that played into a larger theme about contraception as the “new abortion.” They are entitled to hold those beliefs and to act on the basis of those beliefs, but there’s actually a question as to whether the contraceptives themselves operate in a way that makes them abortifacients even according to these groups’ own religious views of what constitutes abortion. The courts didn’t actually engage those questions in litigation.

 

That is what’s most potent about the complicity claims. There’s no logical stopping point to them, and they can actually frustrate the government’s ability to mediate the impact of religious accommodation on third parties.

 

I don’t have a problem with claimants being able to assert religious beliefs that are contrary to scientific facts. It is a little more problematic that we don’t explore whether the things being objected to operate in a way that actually runs counter to religious views of what is objectionable. That’s a conversation we didn’t have enough.

Cosmologics: Your own work focuses primarily on questions of family law, legal ethics, and law and sexuality. How do you see Hobby Lobby having an effect on those areas of law in addition to religious liberty?

Douglas NeJaime: I think the effect is really far reaching in the LGBT space, which also includes the family law space. Most importantly, I think it bolsters a lot of RFRA efforts at the state level. In the 1990s and early 2000s after the Supreme Court ruled that the federal RFRA couldn’t be applied to the states—essentially that Congress had exceeded its authority in applying it to states—there was a wave of RFRAs passed at the state level. But these more recent efforts to create new state RFRAs or expand current ones are of a different kind because they’re aimed specifically at opposing same-sex marriage or legislation trying to stop anti-LGBT discrimination. I think this is part of a much broader narrative in which religious liberty is seen as a way to curtail the implications of laws protecting LGBT people.

Mississippi, for example, did pass a RFRA in the last few years, but then on top of that they also passed HB 1523, which exempts individuals, corporations, and government actors from having to provide services to same-sex couples, gay and lesbian people, or transgender people. Hobby Lobby makes that kind of law politically possible and also attractive to opponents of same-sex marriage, and so that’s what I see to be the biggest effect that Hobby Lobby will have on family law and LGBT rights moving forward.

Cosmologics: Where do you see these religious liberty debates going next, especially in the wake of the 2016 election cycle?

Douglas NeJaime: It’s hard to say. You know, in the beginning of February this year, we were all waiting for an executive order that would essentially give religious exemptions from the executive order that was protecting LGBT people from discrimination by federal contractors. That executive order never came, so clearly there are people within the administration who are divided on these questions.

But it’s also clear that there is adequate support at the state level to continue to push laws that provide religious liberty exceptions to laws protecting LGBT people. Another thing to note is that, if you look at states with RFRAs and states with LGBT non-discrimination laws, they actually don’t overlap very much. So when you get a state like Mississippi passing a RFRA, and then passing a law that provides these specific religious exemptions, part of what it is doing, I think, is rehearsing arguments that are going to be made at the federal level if federal anti-discrimination law ever becomes politically viable.

The other thing to add is regarding Zubik v. Burwell, the case that came after Hobby Lobby. This case really puts the government in a hard position because there, the claimants were also objecting to even notifying the government of their objection. This basically means that they’re going to object to any effort by the government to try to offset the impact that religious exemptions have on third parties because they have to do something in order for that to happen. That’s a particularly dangerous type of claim because it undermines the ability of the government to both pursue its social ends and to accommodate religion at the same time.

That is what’s most potent about the complicity claims. There’s no logical stopping point to them, and they can actually frustrate the government’s ability to mediate the impact of religious accommodation on third parties. It could make it very hard to create a system of accommodation. Instead, you have a system in which religious claimants’ interests are allowed to operate to the detriment of individuals who have a right they also want to exercise. That’s going to be a big problem.


Douglas NeJaime is a Professor of Law at the UCLA School of Law, as well as a current Visiting Professor of Law at Harvard Law School.

Eric Stephen is a PhD Candidate in the Committee on the Study of Religion at Harvard University.

 

Image from Flickr via Joe Brusky

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