Hobby Lobby and Galloway: The Expansion of the Role of Religion in American Governance

Abstract

The Pilgrims who departed from Harwich England on the Mayflower in September 1619 were fleeing persecution and religious wars. The colonial government that they established at Plymouth would co-exist with their church. The Framers, almost two centuries later, fashioned the First Amendment which protected the free exercise of religion against government intrusion, and prohibited government regulation or support of religions. The Supreme Court has engaged in the difficult task of drawing boundaries between religion and civil authority ever since. In the 2013 Term the Court favored religion over civil authority in two significant cases: in the Galloway case the Court allowed a town-sponsored Christian prayer at the beginning of a town meeting; in the Hobby Lobby case the Court decided that a federal mandate to provide insurance that paid for contraception could not prevail over certain individual religious objections. The article reviews the opinions in these two 5-4 cases. It also briefly reviews: the opinions of the Framers; the case law under the two clauses of the First Amendment; the intrusion of Congress into the arena and finally thoughts about the implications of these two important decisions.Hobby Lobby is also noteworthy for its enthusiastic embrace of the Religious Freedom Restoration Act which effectively preempts Supreme Court interpretation of Free Exercise with the effect of taking a whole body of constitutional law which for 200 years had been the exclusive domain of the Supreme Court and of subjecting it to Congressional control with an ill-considered and poorly written statute.A majority of Americans continue to believe that Engel v. Vitale, prohibiting prayer in public schools, was wrongly decided and that children should be allowed to pray in schools. Galloway refused to extend the Engel principle to the town meeting. RFRA was enacted by a nearly unanimous Congress. We are clearly a country that takes religion seriously. Galloway and Hobby Lobby follow the trend: the Establishment Clause is weakened by Galloway which will allow for more public prayer and perhaps more subsidies for religious schools; and RFRA will expand the claims for exemption which will most likely be enthusiastically embraced. Washington, Jefferson and Madison would not be happy with these developments. Washington would remind us that religious controversies are always productive of more acrimony and irreconcilable hatreds than those which spring from any other cause. Jefferson wanted to insure the law protected every religion equally. Madison feared that laws favoring religion would undermine respect for government generally.