With
the recent Supreme Court decisions upholding the Affordable Care Act and
Obergefell v.Hodges the legal landscape has evolved to where the Equal
Protection and/or Commerce Clause and Free Exercise Clause are in conflict.
This writing attempts to define the boundaries of the competing clauses
and establish where the Free Exercise Clause allows for relief from government
action with a proposed test to determine if relief should be granted.
Boundaries of Regulation
The Commerce Clause and Equal Protection Clause constitute the backbone of the government’s ability to regulate commerce. The Wickard Aggregation Principle and Heart of Atlanta cases establish the government’s ability to regulate. The Affordable Care Act and Hobby Lobby cases impose limits on the ability to regulate.
Congress, through the Commerce Clause was given the authority to regulate interstate commerce. This ability was challenged and ultimately defined in scope in Wickard v Filburn (317 U.S. 111) where the Supreme Court stated, “The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.”
This regulatory power was combined with the Equal Protection clause to establish that otherwise permissible activity could be regulated to prevent discrimination. In Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, the Court stated, “Congress [is] not restricted by the fact that the particular obstruction to interstate commerce with which it [is] dealing [is] also deemed a moral and social wrong….Congress may -- as it has -- prohibit racial discrimination by motels serving travelers.” The combination of the Commerce Clause and Equal Protection Clause continues to be used to prohibit different forms of discrimination leading to the recent Obergefell v.Hodges decision allowing homosexual marriages.
The seemingly near limitless power granted by Wickard has been scaled back by recent decisions. Although the Affordable Care Act was upheld, the decision served to establish that Wickard has limits. Despite allowing the Act to stand as a taxing power, in National Federation of Independent Businesses v. Sebelius (638 F. 3d 1235) the Court placed a limit on the ability to compel action stating, “The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority….The commerce power [] does not authorize the mandate.”
With the power to regulate commerce limited in the ability to compel action, the Court established that the Free Exercise Clause is one such area where action potentially cannot be compelled. The Religious Freedom Restoration Act (RFRA) imposes a two prong burden on the government when dealing with the Free Exercise Clause. The government must show the action (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. In order to compel action the government has to establish both prongs are satisfied. Specifically, in Burwell v Hobby Lobby, 732 F. 3d 1114, the Court stated the government must show, “it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties.”
Relief
With the Free Exercise Clause establishing a limit on the government’s right to compel action, the question becomes where does the limit of relief from compelled action lie. The answer would seem to be at the line of an action directly compromising a sincerely held religious belief. For example, a bakery can be compelled to sell a cake, unless the cake is a wedding cake for homosexual marriage ceremony.
This raises the question of how to determine who can claim an exemption from compelled action? First are the organizations where relief should flow as a matter of summary judgment. In Burwell, the government conceded nonprofit organizations are protected by RFRA. It follows that if the organization would likely achieve tax exempt status on religious grounds should they apply, the exemption applies. If an organization is tax exempt under a different section of the tax code and can establish they are a religiously affiliated organization, the Knights of Columbus as an example, the exemption should apply.
If a nonprofit or tax exempt status doesn’t exist and would not likely be granted, use the business structure to determine the burden of proof. An organization that is closely held and/or under the control of a small number of individuals would need only show a preponderance of the evidence. This holds true for Hobby Lobby as well as for a LLC or small partnership where a small number of individuals control the decision making process.
Boundaries of Regulation
The Commerce Clause and Equal Protection Clause constitute the backbone of the government’s ability to regulate commerce. The Wickard Aggregation Principle and Heart of Atlanta cases establish the government’s ability to regulate. The Affordable Care Act and Hobby Lobby cases impose limits on the ability to regulate.
Congress, through the Commerce Clause was given the authority to regulate interstate commerce. This ability was challenged and ultimately defined in scope in Wickard v Filburn (317 U.S. 111) where the Supreme Court stated, “The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.”
This regulatory power was combined with the Equal Protection clause to establish that otherwise permissible activity could be regulated to prevent discrimination. In Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, the Court stated, “Congress [is] not restricted by the fact that the particular obstruction to interstate commerce with which it [is] dealing [is] also deemed a moral and social wrong….Congress may -- as it has -- prohibit racial discrimination by motels serving travelers.” The combination of the Commerce Clause and Equal Protection Clause continues to be used to prohibit different forms of discrimination leading to the recent Obergefell v.Hodges decision allowing homosexual marriages.
The seemingly near limitless power granted by Wickard has been scaled back by recent decisions. Although the Affordable Care Act was upheld, the decision served to establish that Wickard has limits. Despite allowing the Act to stand as a taxing power, in National Federation of Independent Businesses v. Sebelius (638 F. 3d 1235) the Court placed a limit on the ability to compel action stating, “The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority….The commerce power [] does not authorize the mandate.”
With the power to regulate commerce limited in the ability to compel action, the Court established that the Free Exercise Clause is one such area where action potentially cannot be compelled. The Religious Freedom Restoration Act (RFRA) imposes a two prong burden on the government when dealing with the Free Exercise Clause. The government must show the action (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. In order to compel action the government has to establish both prongs are satisfied. Specifically, in Burwell v Hobby Lobby, 732 F. 3d 1114, the Court stated the government must show, “it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties.”
Relief
With the Free Exercise Clause establishing a limit on the government’s right to compel action, the question becomes where does the limit of relief from compelled action lie. The answer would seem to be at the line of an action directly compromising a sincerely held religious belief. For example, a bakery can be compelled to sell a cake, unless the cake is a wedding cake for homosexual marriage ceremony.
This raises the question of how to determine who can claim an exemption from compelled action? First are the organizations where relief should flow as a matter of summary judgment. In Burwell, the government conceded nonprofit organizations are protected by RFRA. It follows that if the organization would likely achieve tax exempt status on religious grounds should they apply, the exemption applies. If an organization is tax exempt under a different section of the tax code and can establish they are a religiously affiliated organization, the Knights of Columbus as an example, the exemption should apply.
If a nonprofit or tax exempt status doesn’t exist and would not likely be granted, use the business structure to determine the burden of proof. An organization that is closely held and/or under the control of a small number of individuals would need only show a preponderance of the evidence. This holds true for Hobby Lobby as well as for a LLC or small partnership where a small number of individuals control the decision making process.
Next,
would be business entities which are not set up in a manner where the business
is severable from the personal identity of the owners. An example would
be a mom and pop shop doing operating in a doing business as structure.
These entities would need to show by clear and convincing evidence they
have sincerely held religious beliefs in order for the exemption to apply. The
last category is a business entity that is publically traded. If
individuals are free to purchase stock and cast votes or proxy votes the
standard show to a deeply held religious belief would be high as individuals or
organizations who believe counter to the attested to belief would be investing
in and voting on the business operations or who conducts the operations.
However, if the entity could show beyond a reasonable doubt (for example,
a store that sells only religious items) they hold a corporate philosophy that
is based on sincerely held religious beliefs then the exemption applies.
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