How the Hobby Lobby Decision Could Affect Cities

The U.S. Supreme Court recently decided Burwell v. Hobby Lobby Stores, Inc., a case involving a religious freedom challenge against the Affordable Care Act’s contraception mandate.  In the case, the owners of Hobby Lobby and Conestoga Wood Specialties, two closely-held corporations, claimed their religious rights were infringed by the mandate.  The Court held that, as applied to closely-held corporations, the contraceptive mandate violated the Religious Freedom Restoration Act of 1993 (RFRA). 

RFRA prohibits the “[g]overnment from substantially burdening a person’s exercise of religion” unless the government can show the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.  Until this case, it was not clear that RFRA could apply to regulations that govern the activities of closely-held, for-profit corporations.  In other words, courts disagreed as to whether such an entity could qualify as a “person” who actually exercises religion. 

While this case does not deal with a core city issue, its holding has implications for cities because of RFRA’s sister statute, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).  RLUIPA imposes the same general test as RFRA, but – so far as Texas cities are concerned – applies only to land use regulations.  (In the legally-complex 1997 case of City of Boerne, Texas v. Flores, the U.S. Supreme Court held RFRA unconstitutional as it applies to municipal land use regulations.  RLUIPA is an attempt to “re-enact” those provisions.) 

Up to this point, RLUIPA typically allowed only a religious congregation to challenge a city’s land use regulations.  After Hobby Lobby, some fear that for-profit corporations may now claim religious protections from municipal land use regulations. 

In her Hobby Lobby dissent, Justice Ginsburg, citing to an amicus brief submitted by the National League of Cities, acknowledges the potential implication for cities:

“[I]t is…strange to attribute to RLUIPA any purpose to cover entities other than ‘religious as­sembl[ies] or institution[s].’  That law applies to land-use regulation. To permit commercial enterprises to challenge zoning and other land-use regula­tions under RLUIPA would ‘dramatically expand the statute’s reach’ and deeply intrude on local prerogatives, contrary to Congress’ intent.” 

Just how dramatic this expansion could be remains to be seen.     

 

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.

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