The Supreme Court decided an important First Amendment case this past week. But it wasn't Burwell v. Hobby Lobby. On Thursday, a unanimous Court struck down a Massachusetts law that restricted peaceful expression on public streets and sidewalks outside of abortion clinics. And those who care about religious liberty should know at least as much about that case, McCullen v. Coakley, as they do about the more narrowly decided case with which the Court ended its term.
To be sure, Hobby Lobby is an important decision. The Court rightly concluded that the Religious Freedom Restoration Act (RFRA) protects certain kinds of corporations from federal laws that substantially burden the exercise of religion. As Justice Alito wrote for the majority, "Congress enacted RFRA in 1993 in order to provide very broad protections for religious liberty."
But this also means Hobby Lobby was decided based on a federal law, not the Constitution. From the Court's point of view, the case had nothing to do with the First Amendment—and if it had, Hobby Lobby and its owners might not have prevailed. Indeed, the reason that Congress overwhelmingly passed RFRA in the first place (97-3 in the Senate, by acclamation in the House) was a disturbing Supreme Court decision in 1990, Employment Division v. Smith, which lowered the First Amendment's protections for religious liberty. The decision in Smith held that the First Amendment provided no special protection for religious liberty claims brought against "generally applicable laws."
Since most laws (possibly including the contraceptive mandate at issue in the Hobby Lobby case) are generally applicable, Smith in effect meant that the government could prevail over religious liberty objections in its laws and regulations. RFRA (and similar statutes enacted by some states) was designed to counteract that troubling constitutional standard. But RFRA's protections are not First Amendment protections. The Hobby Lobby majority acknowledged this, and Justice Ginsburg, writing in dissent, contended that "any First Amendment Free Exercise Clause claim Hobby Lobby . . . might assert is foreclosed by this Court's decision in [Smith]." We cannot know for sure how the Court as a whole might have decided Hobby Lobby's claims on First Amendment grounds, but the precedent in Smith gives us some reason to suspect that Justice Ginsburg is right.
McCullen, in contrast to Hobby Lobby, is squarely a First Amendment case. It involves a 2007 Massachusetts law that established a 35-foot buffer zone around abortion clinics that categorically excluded citizens from engaging in any expressive conduct. The buffer zones extended to public streets and sidewalks.
A prolife woman named Eleanor McCullen, along with several others, challenged the law. The Court properly noted that McCullen and her fellow litigants were not "protesters" but people who sought "to inform women of various alternatives and to provide help in pursuing them," an objective they believed could be achieved "only through personal, caring, consensual conversations."
McCullen's activities were indisputably peaceable. Yet the Massachusetts law criminalized them. Had she approached a willing listener to discuss abortion in a covered zone, she would have been subject to three months' imprisonment for a first offense, and two and a half years' imprisonment for each subsequent violation. The statute also prevented McCullen from entering the covered zone to sing or pray quietly.
The Massachusetts law meant that "McCullen [was] often reduced to raising her voice at patients from outside the zone—a mode of communication sharply at odds with the compassionate message she wishes to convey." The zones "also made it substantially more difficult for [her] to distribute literature to arriving patients." The Court noted that these burdens "have clearly taken their toll," citing undisputed testimony that the law substantially reduced the success of McCullen and her fellow litigants in persuading women not to terminate their pregnancies.
In striking down the Massachusetts law, the Court properly emphasized that "it is no accident that public streets and sidewalks have developed as venues for the exchange of ideas." And responding to arguments from the state that the buffer zones helped with administrative enforcement, the Court noted that "the prime objective of the First Amendment is not efficiency."
McCullen was a unanimous decision—every justice agreed that the Massachusetts law was unconstitutional. But Justice Scalia, writing for himself and Justices Kennedy and Thomas, scolded the Court for failing to taking the opportunity to overrule Hill v. Colorado, a 2000 decision involving abortion protesters. Hill also involved a state law that restricted expression outside of abortion clinics, but the Supreme Court upheld that law.
In a brief filed on behalf of a broad coalition of religious groups, Stanford Law professor Michael McConnell and I argued that the Court should have used McCullen to overrule Hill. We weren't the only ones. A host of progressive organizations and scholars have also disavowed Hill. Harvard Law Professor Laurence Tribe—himself a defender of abortion rights—calls Hill "slam-dunk simple and slam-dunk wrong."
The Court's failure to overrule Hill in McCullen is deeply disappointing. Justice Scalia suggested that the decision reinforced "an entirely separate, abridged edition of the First Amendment applicable to speech against abortion." But he also noted more optimistically that Hill is now a questionable precedent because the "unavoidable implication" of McCullen "is that protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks." Indeed, we should not lose sight of the principles which McCullen upholds—First Amendment principles that are at least as important as the legal issues in Hobby Lobby. As Professor Tribe noted in a New York Times op-ed this past Friday, "The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support." In McCullen, as Tribe observed, "all nine justices united to reaffirm our nation's commitment to allowing diverse views in our public spaces." That commitment reinforces the freedoms of the First Amendment, including speech, assembly, and the free exercise of religion.
Hobby Lobby, like McCullen, is a win for religious liberty. And RFRA is an important statute. As Kim Colby of the Christian Legal Society recently noted, "for two decades, RFRA has stood as the preeminent federal protection of all Americans' religious liberty." But RFRA is not a constitutional protection. Its protections could be withdrawn by Congress. And even in its current form, after some of its provisions were struck down by the Supreme Court in 1997, RFRA only applies to federal laws and regulations, not to state or local laws.
Hobby Lobby is an important affirmation of the aims of the Religious Freedom Restoration Act. But it is a narrow and in some ways precarious decision, subject to the whims of future legislators or a slight shift in the Court's current composition. And it is not a First Amendment decision. We should be glad for Hobby Lobby, but we shouldn't lose sight of the unanimous decision in McCullen, and its reminder that when it comes to the roots of our religious liberty, the First Amendment is what matters the most.
John Inazu is associate professor of law at Washington University School of Law, an expert on the First Amendment freedoms of speech, assembly, and religion, and the author of Liberty's Refuge: The Forgotten Freedom of Assembly (Yale University Press, 2012).
Article edited slightly to clarify that whether HHS's contraceptive mandate is "generally applicable" has not yet been specifically litigated.
