Culture Politics

Should Congress repeal the law behind the Hobby Lobby case?

President Bill Clinton signs the Religious Freedom Restoration Act on the White House's South Lawn on Nov. 16, 1993.

WASHINGTON (RNS) As soon as the Supreme Court decided for Hobby Lobby and against the Obama administration’s contraception mandate on Monday (June 30), critics called for the repeal of the 1993 law that the justices relied on to make their 5-4 decision.

President Bill Clinton signs the Religious Freedom Restoration Act on the White House's South Lawn on Nov. 16, 1993.

Public domain photo via the The U.S. National Archives

President Bill Clinton signs the Religious Freedom Restoration Act on the White House’s South Lawn on Nov. 16, 1993.

A Washington Post editorial suggested the next day that the statute — the Religious Freedom Restoration Act — could be narrowed in scope. A hashtag popped up on Twitter: #repealRFRA. The Freedom From Religion Foundation asked its constituents to lobby Congress to scrap the law.

Yet at the same time, 10 prominent religious leaders sent a letter to Congress, imploring lawmakers not to touch the Religious Freedom Restoration Act.

“Do not amend or appeal RFRA, one our nation’s most vital legal protections for the religious freedom and rights of conscience of every person of every faith,” read the letter, whose signatories included the Rev. Matthew Harrison, president of the Lutheran Church-Missouri Synod; Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention; and Gary E. Stevenson, presiding bishop of The Church of Jesus Christ of Latter-day Saints.

RFRA sits at the heart of the Hobby Lobby case, perhaps the most debated on the Supreme Court’s docket during its just-finished session. The case revolved around the question of whether employers had to cover all types of birth control, including ones that their religious convictions held out as morally objectionable. But it hinged on little-known RFRA.

RFRA says federal laws can’t substantially burden a person’s free exercise of religion unless the law furthers a compelling government interest  (in this case, getting free birth control to women) and uses the least restrictive means possible.

In the Hobby Lobby decision, the court’s conservative majority ruled that privately held corporations, not just people, have rights under RFRA. And while it assumed the contraception mandate furthered a compelling interest, it ruled that the mandate was not the least restrictive means of getting a full range of birth control to women, and that in the process the mandate trampled on the religious rights of the evangelical Green family that owns Hobby Lobby.

Marci A. Hamilton, a Benjamin N. Cardozo School of Law professor who has been trying to repeal RFRA since Congress passed it nearly unanimously in 1993, said the Hobby Lobby case shows how RFRA invites religious people to use their beliefs to discriminate against others.

“The genie is out of the bottle,” Hamilton said. “RFRA is an extreme standard, and with Hobby Lobby it becomes crystal clear that RFRA yields results that are in opposition to the vast majority of Americans’  views.”

Most Americans, a Kaiser Health Tracking Poll released in April showed, believe that an employer’s religious beliefs should not trump employees’ rights to all types of birth control promised by law.

Many critics of the Hobby Lobby decision say it not only tramples women’s health care rights, but also opens the door to other business owners who want to invoke their religious rights to discriminate by, for example, refusing to hire gay employees.

In the wake of the ruling, Sarah Warbelow, legal director of the Human Rights Campaign, a national gay rights group, said it and allied groups “must remain vigilant in the event business owners attempt to use this decision to justify other forms of discrimination, including against LGBT people.”

Could the movement to repeal RFRA go anywhere? So far, no member of Congress has stood up to advocate repealing or even tinkering with it, though some have said the Supreme Court misinterpreted it.

“I’m not nervous for RFRA,” said the Southern Baptists’ Moore. “I think RFRA is secure in law and that it has the support of the Congress.”

Still, the attacks against RFRA, Moore continued, are unsettling, and reflect a movement on the political left to redefine religious liberty protections as licenses to discriminate.

“We do see religious liberty coming under harsh rhetorical attack in ways I don’t think could be anticipated years ago,” he said. “We’re attempting to be Paul Reveres for religious liberty protection and warning people ahead of time that there are crucial rights that must be protected.”


About the author

Lauren Markoe

Lauren Markoe has been a national reporter for RNS since 2011. Previously she covered government and politics as a daily reporter at the Charlotte Observer and The State (Columbia, S.C.)


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  • Congratulations America. You voted for Republicans and now look how stupid you look! Yikes!

    Republicans are crazy. They intractably believe that their beliefs and the mythologies they subscribe to, are justification to intrude on the very private and difficult decisions women may have to overcome in life.

    Tolerance has no place in our world anymore does it?

    Clearly we should all start our own religions and warp the rule of law to fit our beliefs. Our stupid decisions about how we believe the universe works are clearly more important than empirical data and logic.

    Hmmm….Yet how many Republicans batted an eye at said murder of hundreds of thousands of already living and breathing men, women and children in Iraq, at the hands of those same people who asked for their votes in the name of “protecting life”? Republicans are hypocrites.

    This is what we are dealing with America. Terribly stupid fake people.

    It makes me so mad that in the 21st century we are still debating the separation of church and state……and that those people who want to force their beliefs on others do so with no consistency. For these people to say they care about life is a joke.

    Who needs radical Islam when you have the modern Republican?

  • Ten prominent religious leaders. My guess is that these are the usual suspects shilling for the right wing. Many may agree with them, but you can be assured the don’t represent the majority of religious people. The particular issue aside, they do great harm because they are presumed to speak for all of us. Generations of young people have turned away from the faiths because of just such as these.

  • The 11th Commandment:

    When you’re not allowed to force your religious beliefs on others,
    and they challenge your privileges, scream ‘persecution’.

  • Yes, cause the liberal “thinkers” will scream even more than they currently do unless they can get a christian to assist monetarily in their abortions.

  • It is a terrible law and should be repealed. Stop the expensive, ineffectual war on drugs (that discriminates against the poor and minorities) so the Indians can use their drugs in religious rituals (apparently the original reason for the RFRA).

  • There’s one method of contraception that Hobby Lobby fully supports, even makes money off of it: it’s called ‘craft-making’ … funny!

  • @Daniel,



    America has become a nation of idiots
    because the idiocy of religion
    has taken over the American mind.


    Ronald Reagan
    George W. Bush
    Dick Cheney
    Sarah Palin
    Donald Rumsfeld
    Pat Robertson
    Jerry Falwell


    Osama Bin Laden
    Rudolf Hess
    Adolf Eichmann
    Cardinal Bernard Law
    The Koch Brothers
    Marshall Herff Applewhite, Jr.
    Ayman Al Zawahiri
    Robert Tilton
    Joseph Mengele
    Ayatollah Khomeini
    Hahmoud Ahmadinejad
    Adolf Hitler
    Peter Popoff
    Reichsfuhrer SS Julius Shreck
    Reichsfuhrer SS Joseph Berchtold
    Max Koegl (Manager of Auchwitz)
    Reichsfuhrer SS Erhard Heiden
    Reichsfuhrer SS Heinrich Himmler
    Reichsfuhrer SS Karl Hanke
    Archbishop Cardinal Law
    Adolf Eichmann
    Adolf Deikmann
    Fritz Hardjenstein
    Werner Braune
    Bob Morehead
    Fred Phelps, Sr.
    Oral Roberts
    Jim and Tammy Faye Bakker
    Matthew Hale
    Al Queda
    Billy James Hargis
    Bob Larson
    Jim Jones
    Saddam Hussein
    David Koresh
    John Paulk
    Suicide Bombers
    D.V. Grant
    Mike Warnke
    Emperor Hirohito
    Ariel Sharon
    Yasser Arafat
    Benjamin Netanyahu
    Paul Crouch
    Pat Robertson
    Marcial Maciel Degollado
    Michelle Bachmann
    Sarah Palin
    Franz Stangl
    Paul Blobel
    Hermann Goering
    Josef Kramer
    Jerry Falwell
    Oskar Dirlewanger
    Jimmy Swaggart
    Creflo Dollar
    Ilse Koch
    Joseph Goebbels
    Reverend Sun Myung Moon
    Sunday Adelaja
    Pope Leo X
    Anathole Serromba
    Jean Bertand Aristide
    Mel Gibson
    Benny Hinn
    T.D Jakes
    Dick Cheney
    Adolph Hitler
    Kim Jong-Il
    Kaiser Wilhelm II
    Kim Il Sung
    Rush Limbaugh
    Erst Kaltenbruenner
    Michael Bray
    Paul Jennings Hill
    Father Charles Edward Coughlin
    Tomás de Torquemada
    Emperor Constantine

    If god is good – why does he have such a disgusting marketing team?
    If God is moral, why is he always a fascist?

  • Jimmy Carter belongs on this disgusting list, too.

    He brought ‘born again’ status to the level of the Presidency
    (an American embarrassment) and with his latest book
    Carter reveals he can’t believe in God in the same way anymore.
    He acknowledges that religion does too much harm to women.

    Better late than never, Jimmy. I applaud your questioning!

    But Carter will live in infamy with many others on this list
    of deluded fools and rascals!

  • Hey Daniel and others whose heads are about to explode (hopefully)….. didn’t your beloved Democrat Congress of 1993 and president Bill Clinton foist the Religious Freedom Restoration Act upon us? Just sayin, you are not really paying attention. Can’t blame Republicans for a Liberal agenda law and a very liberal Supreme Court who couldn’t completely ignore the mandate it contained. No one can be forced to finance activities that are against their deeply held religious views. Except ôf course via our tax dollars. Deems don’t have any problem financing their immoral agendas by taxing us to pay for them.

  • The problem is not with RFRA. The problem is applying it to corporations rather than natural people who can have legitimate elisions beliefs. The ideas that one an impute religious belief to something whose existence is merely a filing of papers in a state’s Department of State was utterly ridiculous.

    The distinction between “public” and “closely held” corporations is utterly phony under the law. Even SCOTUS knew they were writing a stinker of a decision. But they wanted to justify a desired end but in such a way it could not really be applied elsewhere. They knew it was a fundamentally intellectually dishonest decision and li tied the ruling for purposes of damage control.

    Applying RFRA to corporations destroys its purpose and gives greater coercive power to those who already have it in spades. If the purpose of the law is to allow redress to those who lack power otherwise, it has failed with this little unwarranted amendment.

    Leave it to conservatives to twist laws beyond all sane reason to make it easier for corporations to attack individual liberties.

  • hmm I’m on the fence on this one. i can see both sides of the argument. I do think that this issue shouldn’t even have made it to the supreme court and that religious beliefs shouldn’t have been used as the reason to deny coverage for these contraceptives. But I CAN see why someone wouldn’t want to pay to have these included in health care coverage.

    First, the entire purpose of a health care system is that everyone pays a little bit for the few that get sick. So if I’m looking at it from the perspective of getting sick and treating sickness, I don’t know if I can see contraceptives as treating a sickness. I mean we all get cancer or malaria or the flu and they’re all random, equal opportunist diseases (to an extent), so you can clearly see how those things should be covered. But not all of us get pregnant, and it’s not a random thing that you can get – you need to actually physically do something consensual on your part to actually get pregnant (Different issue for rape victims). So on the issue of sickness I can’t vouch for contraceptives.

    Then there’s the issue of wellness. And that, I can see how contraceptives should be covered on the basis of wellness. But there’s a lot of things you could consider to be part of the wellness of the human body. Couldn’t you make the argument (and a pretty convincing one) that vitamins do more for the overall human wellness than contraceptives do? So why shouldn’t the orange juice I bought at the market be covered by my insurance? Or to compare something more similar, why aren’t condoms covered by insurance?

    Anyways, the fact that the SCOTUS was split just goes to show that it’s an issue that’s evenly divided among people and that both sides have a fair argument. I do think that the religious freedom reason shouldn’t have been used to deny coverage, and I do think certain contraceptives should be included in health care, but if they weren’t included I can certainly see valid reasons for it that don’t include religion.

  • And with no opinion on corporate religious belief you make Hobby Lobby’s position sound more reasonable than reality permits.

    SCOTUS will be divided on any issue with a blatantly partisan bent. ACA covers wellness in a sane fashion. Most diagnostic testing is covered. Your orange juice analogy betrays a fundamental ignorance of the purpose of health insurance a way to Make the anti-contraception POV sound reasonable when it clearly is not. Insurance covers what would be troublesome to pay out f pocket. In the case of contraception, it means effective ones for women. Many are expensive or require medical implantation.

    The idea of parsing out which contraceptive should be covered on what amounts to purely arbitrary and capricious (in this case also factually incorrect) reasons is ridiculous. The religious belief of the employer is not a legitimate reason to deny or limit healthcare options of employees.

    Pretty much the arguments people use here in favor of Hobby Lobby require willful omission, ignorance of facts or in he case of the SCOTUS decision blatant intellectual dishonesty.

  • Not sure we’re you are getting your information, the original religious reformation restoration act was approved by Bill Clinton ( A Democrat) in 1993. It was originally mentioned to address native Americans use of peyote in their religious ceremonies. Although I am suspect of the ne ed of the law myself I have not encountered an case of this law being used to descriminate against anyone based on race, color or sexual orientation. I am also sceptic of the way the law is written that any of those types of discrimination would not be covered under this. This law the way it is worded seems to restrict governments ability to force religious people to do thing that are not accepted by their religious beliefs.