On June 30th, the U.S. Supreme Court held in Burwell v. Hobby Lobby that closely held corporations with religious objections to the Affordable Care Act may refuse to provide certain reproductive health care to employees. We've been asked: could a business opt out of a Vermont law in the same way?

To begin with, it's helpful to understand that the objectors in Hobby Lobby did not claim that the Affordable Care Act's reproductive health requirements violated the Free Exercise Clause of the First Amendment to the United States Constitution. (("Congress shall make no law ... respecting ... the free exercise [of religion] ... ."))

The reason that Hobby Lobby's corporate owners did not bother with a Free Exercise claim is that it would have failed. More than twenty years ago, the supreme court held in Employment Division v. Smith (( 494 U.S. 872 (1990) )) that generally applicable laws not targeting a specific religious practice do not violate the Free Exercise clause. The court's concern in so holding was that the alternative -- permitting everyone to challenge any law that violated their religious tenets -- would "permit every citizen to become a law unto himself." ((Id. at 879 (internal quotation omitted).)) So, post-Smith, it is not possible to argue, for example, that the federal income tax is unconstitutional because the proceeds of the tax are used to pay for things that violate a religious belief.

Congress did not like Smith, but of course cannot dictate how the constitution is interpreted. So it passed the Religious Freedom Restoration Act ("RFRA") in 1993 ((Pub. L. No. 103-141. The later Religious Land Use and Institutionalized Persons Act, Pub. L. No. 106–274 amended RFRA in a number of ways that are not discussed here. )). RFRA allows a person to have a law invalidated if the law "substantially burdens a person’s exercise of religion," ((42 U.S.C. § 2000bb–1(a). )) and the government fails to prove that the challenged law both "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering that compelling governmental interest.” ((Id. § 2000bb–1(b). RFRA defines "religious practice" broadly, as being “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Id. § 2000cc–5(7).))

But RFRA had a constitutional problem in it when it was passed. As written, RFRA would have permitted any person to challenge any state or federal law that burdened a religious practice. However, Congress does not have the power to put state laws in peril at its say-so, and the supreme court struck the portion of RFRA that applied to the states in 1997. ((City of Boerne v. Flores, 521 U.S. 507, 533-4 (1997).))

So, RFRA -- the statute Hobby Lobby's corporate owners used to challenge the reproductive health mandate -- cannot be used against state laws. Some states have passed measures permitting their own laws to be challenged on the same basis as RFRA permits challenge to federal ones, but Vermont is not one of such states. ((See map of state RFRAs here. It is of course always possible for a person to mount a challenge under Article 3 of the Vermont Constitution, but the free exercise portion of that provision has not been interpreted by the state supreme court, and it is not clear that our court would reach a different result than the federal court did when interpreting the First Amendment in Smith.))

Hence, the answer is no, Hobby Lobby could not be readily duplicated here in Vermont.