I’e previously blogged about a Circuit Split regarding whether RFRA can be raised as a defense in a private cause of action, perhaps under Title VII or other anti-discrimination law. There is currently a Circuit Split over this issue (discussed in this note in the Virginia Law Review).

This topic came up at several junctures during oral arguments in Hobby Lobby.

Justice Kagan posed the question of whether a religious objection could be raised to a sex-discrimination claim?

Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative.

Clement does not want to go there, and insists that the court can  “separate the sheep from the goats.” In other words, not toss out discrimination claims (sheep), but toss out contraceptive mandates (goat).

MR. CLEMENT: Well, I don’t say that. I think Congress said that. But to be as responsive as I can to your question, the parade of horribles that the government offers you ought to sound familiar, because if you look at that parade of horribles ­­ Social Security, minimum wage, discrimination laws, compelled vaccination ­­ every item on that list was included in Justice Scalia’s opinion for the Court in Smith. And Justice O’Connor responded to that in her separate opinion and she said, look, you’ve got to trust the courts; just because free exercise claims are being brought doesn’t mean that the courts can’t separate the sheep from the goats.  ­­

In a later answer, Clement focused on the nature of the compelling interesting–the government would have a compelling interest to prohibit gender discrimination, but not to mandate contraceptives.

And I don’t think applying the test to recognize this case, where I think the government has an incredibly weak case on compelling interest and least restrictive alternatives, which they almost don’t want to talk about at all, is going to endanger any other statutes. And if I could talk about specific ­­

Clement repeats this point much later, in the context of U.S. v. Lee, and argues that it would be really hard to bring a claim to exempt oneself from taxes.

And I think Lee does stand for the proposition that in the tax context, it’s going to be very hard for somebody to bring a claim that satisfies even the demanding 2compelling interest, least restrictive alternative test.

As Alito questions, there have been very few challenges to minimum wage laws.

JUSTICE ALITO: Well, could I ask you this, Mr. Clement. In ­­ in all the years since RFRA has been on the books, has any of these claims involving minimum wage, for example, been brought and have they succeeded?

Clement replies that “very few have succeeded.” Did some of these win??

MR. CLEMENT: Justice Alito, very few of these claims have been brought. Very few of them have succeeded, and that’s notwithstanding the fact that all of these statutes we’re talking about apply to employers generally.

Though Kagan contends that if Clement wins, “religious objectors [would] come out of the woodwork.”

That if your argument were adopted and there was a strict scrutiny standard of the kind that usually applies and a least restrictive alternative requirement, then you would see religious objectors come out of the woodwork with respect to all of these laws. And because you say that there ­­ and I think this is absolutely right when you say it ­­ that you ­­ you cannot test the centrality of a belief to a religion, you cannot test the sincerity of religion. I think a court would be, you know ­­ their hands would be bound when faced with all these challenges if your standard applies.

Also, in a related context, Clement distinguished between employment discrimination and and denying someone coverage of contraceptives, with respect to burdens to third parties.

Now, each of those has a burden on third parties, but I would respectfully suggest they’re different. In the case of the employee who’s been subject to racial discrimination, even if they can get another job, that racial discrimination is a unique injury to them that you can’t remedy unless you tell the employer, don’t discriminate on the basis of race. Now, in the context of the conscience clause, if a woman can’t get an abortion from her preferred provider, that’s surely a significant burden on her. But we don’t view that as trumping the conscience clause, because she can get the abortion through another mechanism.

Verrilli commented on whether Title VII can be avoided if the government could not justify its compelling interest:

And I ­­ and I do think, if I could, with respect to this issue of whether there are exemptions that defeat a compelling interest, that I submit would be a very dangerous principle for this Court to adopt in the form that my friends on the other side have offered it, because not only would you then be in a position where it would be very hard to see how Title VII enforcement could be justified by compelling interest in response to a RFRA objection, ADA enforcement, FMLA enforcement, all kinds of things. And I do think ­­

But RBG cut him off and said that RFRA wouldn’t apply to Title VII.

JUSTICE GINSBURG: Title VII was passed before 1993, so it wouldn’t apply ­­ RFRA wouldn’t apply to Title VII.

That isn’t how every Court has read it. Though, then-Judge Sotomayor dissented from a Second Circuit decision holding that RFRA “does not apply to disputes between private parties.” Though the government disagreed with Sotomayor, and conceded this position.

GENERAL VERRILLI: Well, I think ­­ with all due respect, Justice Ginsburg, I think you could claim a RFRA exemption from Title VII. And the problem here would be that ­­ and I think one of the things that’s significant about the position that my friends on the other side are taking here, is that with respect to exemptions, for example, from the Title VII requirement against discrimination on the basis of religion and hiring, Congress made a quite clear judgment to provide a very narrow exemption: Churches and religious educational institutions and religious associations, and that’s it. Nobody else can claim an exemption under Title VII.

I don’t know how you can take the position that RFRA would not modify Title VII. It purported to do just that. Maybe the compelling interest of eliminating race and sex discrimination would override any religious belief. But the claim must be stated.

Justice Scalia seems to suggest an exemption from Title VII under RFRA is possible:

JUSTICE SCALIA: Except that they passed RFRA after that. That made a lot of sense. But the question is they passed RFRA after that.

Even though Arizona’s SB 1062 failed, and Elane Photograph is only about compelled speech, sooner or later we will see a conflict of RFRA and an anti-discrimination law.