Wilson Huhn is a distinguished professor and C. Blake McDowell, Jr., Professor of Law at the University of Akron School of Law.

In 2014 the Supreme Court issued two significant decisions on Freedom of Religion: Town of Greece v. Galloway and Burwell v. Hobby Lobby Stores, Inc. On the one hand, these decisions could be viewed as expanding individual rights because persons who are motivated by religious impulses were found to possess the right to exercise their religion in the manner they saw fit. However, in both cases the expansion of religious liberty was acquired at the expense of limiting the rights of other people. Furthermore, in both cases the Supreme Court distorted or overruled existing law protecting individual rights.

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Town of Greece v. Galloway

1. What did the Town Board of Greece actually do that was challenged in court?

The Town Board of Greece solicited local clergy to be recognized as “Chaplain of the Month” and gave them the opportunity to deliver a prayer to open the monthly meetings of the board. Over a period of nine years every single official prayer that was delivered before the board was expressly Christian addressing Jesus as the Son of God, and the citizens of the town attending the meeting, who frequently were there on official business seeking rulings from the board, were asked to bow their heads and join the prayer. After the litigation began the Board allowed any person to deliver the opening prayer.

2. On what grounds did residents of the Town of Greece challenge Town Board’s practice of official prayer?

The challengers asserted that the Town Board’s practice of official prayer violated the Establishment Clause of the First Amendment, which provides that the government may not make any law “respecting an establishment of religion.” The persons challenging the Town Board’s practice did not contend that it was unconstitutional for the Town Board to hold an official prayer. They argued simply that the prayers were unconstitutional because they were too one-sided and that the effect of the Board’s actions was to endorse a particular religion. They suggested that the Town Board should have instructed the persons delivering the prayers to make them nonsectarian, that is compatible with most or all religions.

3. Did the majority of the Supreme Court find that it would be appropriate for the Town Board to intentionally select persons of only one religion to deliver sectarian prayers?

No. The majority of the Supreme Court interpreted the evidence to conclude that the Board permitted anybody to conduct the prayer at the start of meetings, and that the Board exercised no control over the content of the prayers.

4. Did the Court rule that the government may instruct guests to deliver prayers that are nonsectarian?

No. Clergy and other citizens, ruled the Court, have a constitutional right to say whatever they want in their prayers. The government may not dictate the content of prayers – neither the Town Board nor the courts may prohibit a person from expressing his or her personal religious beliefs. The Court found that if official prayers are permissible in this setting, then the fact that those prayers are sectarian is of no constitutional significance.

5. Does the Constitution place any limits on the content of official prayers?

The Court did place some limits on the content of official prayers. If the purpose or effect of the official practice were to regularly result in prayers that proselytize for a particular religion or that denigrate other religions then the practice would be unconstitutional.

6. Does this decision mean that all units of government may engage in sectarian prayers at any time?

No. There has been a tradition of official prayer in some governmental settings such as presidential inaugurations or the opening of legislative sessions. But there are other governmental settings where there is no tradition of official prayer or where it would be inherently coercive. For example, the Supreme Court (including Justice Kennedy, who wrote the Court’s opinion in Galloway) has found official prayer in the public schools to be coercive, and the decision in Galloway does not cast doubt on that finding. The residents of the Town of Greece challenging the official prayers contended that meetings of the Town Board were akin to court hearings or hearings before an administrative agency where it would be inappropriate and coercive to ask litigants to join in prayer conducted by a judge or hearing officer. But the Supreme Court ruled that the opening of a meeting before a town board was typically ceremonial and separate from the business portion of the meeting, and that any person who wished not to engage in prayer could easily skip this portion of the meeting.

7. Does the decision of the Supreme Court in Town of Greece v. Galloway change the law and threaten religious freedom?

Yes. The great problem with the Court’s decision in Town of Greece v. Galloway is that it overruled the landmark ruling in Allegheny County v. ACLU of Greater Pittsburgh (1989). In that case and in thirty other cases before and since, the Supreme Court had ruled that the central meaning of the Establishment Clause is that the government may not promote, advance, or endorse religion. The “no endorsement” test has been a bulwark of religious freedom for nearly seventy years, and has been the foundation for the wall of separation between church and state. In a very brief passage in Galloway the Court rejected the “no endorsement” test, not mentioning the dozens of other cases where the rule had been applied. The Court replaced the “no endorsement” test with a “tradition” test (has the government traditionally engaged in the practice) and a “no coercion” test (is the government coercing people into engaging in the practice). In this case the Court found that there was a tradition of conducting ceremonial prayers to solemnize the opening of meetings of local government, and that the town board’s practice in this case was not coercive.

8. Is it still the law under the First Amendment that the government must be “neutral” respecting religion?

We don’t know. Town of Greece v. Galloway represents a great change in our understanding of the Establishment Clause of the Constitution. Until now the Court and many of our greatest justices have insisted that the government must be “neutral” with respect to religion. In this case the Court did not mention the neutrality principle. This case may signal a turning point where in the future religious individuals and organizations will be permitted to enlist the aid of the government to promote, advance, and endorse religion.

Burwell v. Hobby Lobby Stores, Inc.

9. What was this case about, and what did the Supreme Court conclude?

Under federal law employers that provide health insurance to their employees are obligated to ensure that those health insurance policies cover all FDA-approved methods of contraception at no cost to the employee. In this case the Supreme Court ruled that employers (including business corporations) who have a religious objection to certain forms of birth control are not obligated to comply with that law.

10. Did the Supreme Court interpret the Constitution in this case?

No. This case was not decided under the Free Exercise Clause of the Constitution but rather under the federal Religious Freedom Restoration Act (RFRA). Accordingly, the possibility exists that Congress could overturn the Court’s decision in Hobby Lobby by the simple expedient of amending RFRA. On the other hand, the majority of the Court did not rule out the possibility of coming to the same conclusion under the Free Exercise Clause.

11. As an immediate result of this decision will women be deprived of access to birth control?

No, not as an immediate result of this decision. As a practical matter this ruling will have a very limited impact on the people who were involved in this litigation because there are alternative ways in which that contraception can be delivered to those employees at no cost. However, the future implications of the decision are astounding.

12. Does the Court’s interpretation of religious freedom represent a radical change from previous law?

Yes. The reasoning of the Court represents a radical departure from established principles of freedom of religion, and the future implications of the decision are far-reaching. Ruth Bader Ginsburg in dissent states that the Court’s ruling is of “startling breadth.” She actually understates the case. The Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. is a remarkable case in that it either changes the law or creates new law in a number of fundamental respects.

13. How does the Court’s decision in Hobby Lobby change the prior understanding of freedom of religion?

Here is a summary of the many ways in which Hobby Lobby is the “first case” in Freedom of Religion.

a. This is the first case to hold that for-profit corporations have freedom of religion.

Since medieval times the law has recognized the distinction between religious and charitable organizations on the one hand and business enterprises on the other hand. Throughout American history the law has drawn this distinction between nonprofit corporations and for-profit corporations. This is the first case to hold that for-profit corporations have the right to free exercise of religion. Writing for the majority, Justice Alito frames the question as one of “discrimination” against religious individuals. He states:

In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.

Of course, individuals acting in their personal capacity have always had the right to freedom of religion, as have ecclesiastical institutions. But it is new law to say that private, for-profit business corporations have the right to freedom of religion.

b. This is the first case to hold that if a person simply asserts that a law or other governmental action imposes a substantial burden on the exercise of that person’s religion, then the courts must find that the law or governmental action imposes a substantial burden on the exercise of that person’s religion.

In the past, if a person asserted that some state action burdened that person’s religion, the courts did not simply defer to that person’s judgment. Instead the courts would undertake a careful examination to determine whether the law or other government action in fact imposed a substantial burden on that person’s right to free exercise. In this case, however, the Court simply assumes that the government’s birth control mandate imposed a “substantial burden” on the free exercise rights of Hobby Lobby stores, Inc. because it said so.

In the past the courts have deferred to persons on the question of whether their religious convictions were “sincere.” The courts have also deferred on questions whether a particular belief was “central” to a person’s religion. Deferral as to sincerity and centrality are appropriate. It is not for the courts to determine the content of a person’s religion. But the nature of the burden that a law imposes on religion is not simply a subjective judgment of the individual who is exercising religion, but also includes objective elements about what that law actually does. The operation of the law is not an internal judgment by the individual believer, it is an objective fact that should be decided by the courts.

c. This is the first case to hold that a law is unconstitutional or invalid because there is a less restrictive means that is available without determining whether that alternative law is constitutional.

The precise reason that the majority of the Court used to strike down the birth control mandate was that there was a “less restrictive means” available, namely, the “accommodation” that the government had previously extended to religiously affiliated institutions. Under this accommodation the employer simply notifies the insurance company that it objects to providing coverage for certain forms of birth control to its employees. The insurer then has the duty to provide such coverage to the employees at no cost to the employee.

However, the Supreme Court declined to find that this “accommodation” was itself lawful and valid. Meanwhile some religious organizations are challenging the legality of that accommodation.

d. Most importantly, this is the first case to hold that one person’s right to freedom of religion overrides another person’s legal rights.

The United States of America has a long and proud history of freedom of religion, but until now that freedom was understood to be bounded by other people’s rights.

Until now individuals could assert their right to exercise religion in situations that affected themselves, their families, or their churches, but never before was a person permitted to assert that their right to freedom of religion could deny another person legal rights.

For example, in the past individuals have successfully asserted that they had a right to slaughter animals as part of a religious ritual, or that they had the right not to be conscripted into the military or not to work making armaments. Parents have successfully asserted that they have a constitutional right to send their children to religious schools and that for religious reasons they have the right to withdraw their children from the public schools after the age of 14. Religious institutions have successfully asserted the right to discriminate on the basis of gender, disability, and age in the employment of clergy and other persons performing “ministerial functions.”

In summary, religious freedom has always meant the right to conform one’s own conduct to the dictates of one’s own religion. This right has been limited to individuals making decisions for themselves or their children’s education or the internal governance of religious institutions. It has never been invoked to allow a business or indeed anyone to deprive other people outside the religion of legal rights to which they are otherwise entitled.

Until now.

Larger Implications of Greece v. Galloway and Burwell v. Hobby Lobby Stores, Inc. – A Threat to Individual Liberty

14. How do these decisions of the Supreme Court threaten individual freedom?

The titles of these two cases – Town of Greece and Hobby Lobby Stores, Inc. – illustrate the threat to freedom that they represent. The truth is that neither a town nor a for-profit corporation should have the right to exercise religion. In these cases the Supreme Court found that the public officials who have control of a town board and the persons who control a business corporation had a constitutional right to engage in certain religious practices even though these practices affected the rights of other people. Going forward the questions will be

“Must the government remain neutral towards religion, neither hindering nor advancing it?”


“To what extent are the legal rights of some individuals subject to being abrogated because other individuals have religious objections to those legal rights?”