Originally passed in 1993 with overwhelming bipartisan support, the law — on which the case was decided — forbids government from imposing significant burdens on a person’s religious convictions, unless that burden is in furtherance of a compelling government interest and pursued by the least restrictive means possible.
Some Democratic lawmakers who supported the bill in 1993 issued statements Monday condemning the Supreme Court's interpretation. Sen. Chuck Schumer, D-N.Y., said the RFRA “was not intended to extend the same protection to for-profit corporations, whose very purpose is to profit from the open market,” and called the decision “dead wrong.”
The White House also signaled the hope that Congress will pursue a legislative remedy. Since the Court's ruling was made on statutory, as opposed to constitutional, grounds, a legislative fix is possible.
Congressional Democrats could pursue several options to limit the ruling. They could produce legislation removing corporations from the RFRA's protection. Sen. Dick Durbin, D-Ill., has proposed requiring public disclosure of all employers who deny their employees contraceptive coverage pursuant to the Hobby Lobby decision.
A liberal think tank, the Center for American Progress, released their own legislative proposal to place “reasonable restrictions on religious liberty protections” by adding clarifying language to the RFRA. “This section [referring to the existing statute] does not authorize exemptions that discriminate against, impose costs on, or otherwise harm others, including those who may belong to other religions and/or adhere to other beliefs.”
In his concurring opinion, Justice Anthony Kennedy argued the substance of the RFRA would be protected if government pursued a no-cost sharing mechanism for contraception coverage it created for religious organization and not-for-profits under the contraception mandate. Of the arrangement, Kennedy wrote: “That accommodation equally furthers the Government's interest but does not impinge on the plaintiff's religious beliefs.”