The legal and political landscape has changed dramatically since the Supreme Court decided Burwell v. Hobby Lobby Stores, Inc. five years ago, allowing for-profit companies to use the Religious Freedom Restoration Act (RFRA) to secure an exemption from the Affordable Care Act’s birth control coverage requirement. Now, those who would use religion to discriminate control the reins of power in our federal government, as well as the governments of several states. The Trump-Pence Administration and some state governments have distorted Hobby Lobby and RFRA to justify extremist policies that encourage discrimination and threaten public health and safety. And private individuals and entities continue to use RFRA to discriminate and to evade laws, notwithstanding the harm to others – a trend that the Trump-Pence Administration has encouraged through its own harmful actions and policies.
Justice Ruth Bader Ginsburg authored a vigorous dissent in the Hobby Lobby case, with a prescient warning: “The Court, I fear, has ventured into a minefield” by opening the door for individuals and companies to use religion to claim that any number of laws do not apply to them. This report documents precisely how the Trump-Pence Administration, some state governments, and private individuals and entities have doggedly pursued an agenda that uses religion as a justification for discrimination in a multitude of contexts.
This report updates one issued by the National Women’s Law Center one year after the Hobby Lobby decision, The Hobby Lobby “Minefield”: The Harm, Misuse, and Expansion of the Supreme Court Decision. That report highlighted the multitude of ways individuals and entities attempted, with some success, to use Hobby Lobby and RFRA to avoid having to comply with the nation’s laws and to deny the rights of others. RFRA says that the government cannot “substantially burden” religious exercise unless the government has a very important reason for doing so—a so-called “compelling interest.” Even then there must be no less burdensome way for the government to advance that interest.
RFRA was intended as a shield to protect religious exercise from governmental interference, but Hobby Lobby opened the door for people to use RFRA as a sword to get out of existing legal requirements and impose their personal beliefs on others. The Minefield report documented cases where people pointed to Hobby Lobby to claim that because of their religious beliefs they could discriminate against others, refuse to comply with labor laws and laws that protect public health, and escape criminal prosecution.