If and when the HHS mandate is permanently struck down by the federal courts as an egregious affront to religious conscience in this country, we may likely need to thank, in addition to the Giver of all good things, the Religious Freedom Restoration Act of 1993 (RFRA, for short); and, by extension, thank the overwhelming support of liberal senators, representatives, and special interest groups who joined with conservatives to pass it.
Currently there are 41 lawsuits with over 110 plaintiffs challenging the mandate, which will require most employers to comply with the Affordable Care Act (a/k/a Obamacare) by providing, via their company health plans, contraceptives, possible abortion-causing drugs, sterilizations, and education and counseling on choosing and using those things, all of which are objectionable – in varying degrees – to Catholic, evangelical and Mennonite employers, churches, denominations, religious organizations, religious universities, publishers, etc. The list is lengthy.
In four* of those above-mentioned lawsuits, federal courts have issued preliminary injunctions or “stays” blocking the implementation of the mandate because of – and this is a legal reason the courts use – the “likelihood” that the mandate violates RFRA. Not the First Amendment’s “free exercise” or “establishment” clauses (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”), which you might think are the first line of defense for our religious freedoms; but RFRA, which is a mere statute. And if you’ve convinced a judge – early in the lawsuit’s progress – that there’s a “likelihood” of the success of your argument, the odds are strongly in your favor that once all the evidence and argument is considered, the court will turn the preliminary injunction into a permanent one.
RFRA was enacted after Congress’ strongly bipartisan reaction to the 1990 Supreme Court decision in Employment Div. v. Smith. It passed the Senate by a vote of 97-3, and by the House on a voice vote. Noted liberals such as Sen. Edward Kennedy and then-Rep. Charles Schumer sponsored the bill along with conservatives. A large “who’s who” coalition of left- and right-wing interest groups figured prominently in congressional hearings and lobbying for the bill, including most notably from the Left: the ACLU, Americans United for Separation of Church and State, People for the American Way, and the Anti-Defamation League; and, from the Right: Christian Legal Society, Home School Legal Defense Association and the Traditional Values Coalition, among others.
The bipartisan spirit didn’t last long. Those same liberal politicians and organizations changed their collective minds about RFRA only a few years later, and don’t support it in the HHS mandate cases now.
In Part 2 of this short series, I’ll explain a little further as to how RFRA came to be, and why it is actually more effective than the First Amendment in certain types of cases. In Part 3, I’ll address what happened to the bipartisan support for this law, and why those same liberals now oppose states who try to pass their own state-level RFRAs.