Zubik and the Free Exercise Context


(image via The Atlantic)

One of the most anticipated decisions of the current Supreme Court Term is forthcoming in the case Zubik v. BurwellZubik follows in the footsteps of another recent case: Hobby Lobby v. Burwell, 134 S.Ct. 2751 (2014).  Both cases deal with First Amendment challenges under the Religious Freedom Restoration Act (RFRA) to government mandates forcing employers to provide contraception coverage.  The crux of the argument against the government mandate is that it burdens the free exercise of religion which is protected under the First Amendment.  Without delving into the mire that surrounds the question of how business entities are entitled to First Amendment protections, these cases represent a relatively new application of the Free Exercise Clause.  In this post I examine the spectrum of the Supreme Court free exercise cases both over time and in terms of the topics covered in these cases to see where Zubik fits into this spectrum.

First though I compare Zubik to Hobby Lobby.  Since the decision in Zubik is still pending, I based this analysis around the discussion in the oral arguments of both cases (I examined the Zubik oral arguments in greater depth in a previous post).  The two figures below show the most frequent terms that appear in the oral arguments in these cases that relate to the cases themselves (I do this by removing peoples’ names and conversational words that have no bearing in either case).



Both have the same top two words, “religious” and “government.” This follows from the nature of the cases.  Although the cases deal with very similar topics, the terms that surface in oral argument are not all the same in both.  Many terms in Hobby Lobby deal with the government, laws, and courts.  The third most frequent term in these oral arguments was “RFRA” the main statute brought to bear in tn the case.  The terms in Zubik more often surround the instruments that arise in the case.  These include “coverage,” “plan,” “employees, “contraceptive,” etc.  One might surmise that the Justices were inspecting different aspects of these cases at oral argument, especially since the precedent from Hobby Lobby was already set by the time the Court heard oral arguments in Zubik.

The remainder of the post fits these cases into the larger context of free exercise decisions.  To do this, I performed several searches to find the ideal parameters to locate these cases.  Looking historically, the first case I could find that touched on the Free Exercise Clause was Terrett v. Taylor, 13 U.S. 43 (1814).  This case dealt with a land dispute involving a church and land overseers.  The clause comes into play (and the Court rejects that this clause was violated) with the sentence, “The free exercise of religion cannot be justly deemed to be restrained by aiding with equal attention the votaries of every sect to perform their own religious duties, or by establishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead.”  From this somewhat esoteric case to more modern examples, the Free Exercise Clause has been deployed in a variety of contexts.

My search came up with 127 total cases through the decisions of this Term.  With the cases I was interested to see the variation in subject matter and the pertinent issues that were raised.  I began by creating a wordcloud (see below) with the 300 most frequent terms that arose in these cases (after eliminating words that have no bearing such as “the,” “and,” etc. as well as citation terms such as “footnote” and “supra”).  To create the term list I included one and two word phrases.  The two word phrases appear with an underscore between the two words, like the example “constitutional_law,” so that they can be counted as a term rather than as separate terms “constitutional” and “law.”


Focusing on the most frequent terms that appear across cases, I then grouped the terms into four substantive categories: legal, forum/basis for claim, scrutiny/test, and relationship to religion.  Many of the terms could fit into multiple categories.  For each term I provide the number of cases the term appears in as well as the total number of times the term appears across all cases in this set.  The forum/basis for claim category helps to convey the diversity of subject matter that falls within this First Amendment protection. The most common terms, however, are those in the legal category.


These are general terms that show up in many of the cases.  They relate to the challenged laws and some of the bases for the challenges.  In doing so they do not provide much help in grouping the cases aside possibly from terms that distinguish between federal and state laws at issue.  The next category shows many of the terms that relate to the tests the Court applies in these cases to see if a law burdens the free exercise of religion.


These are things that the Court will look for in its attempt to decide the constitutionality of the law or practice in the case.  The words show how the Court examines both the laws in these cases as well as the rights asserted by parties to the cases.  Depending on the type of right, the Court may scrutinize the statute more or less stringently.

The relationship to religion terms show how often several aspects of First Amendment analysis are linked.


The top two terms in this category, “establishment” and “establishment clause” both deal with the other religious basis for First Amendment claims.  The frequency with which these terms arise both in terms of raw counts and the number of cases show that often the Court is examining multiple dimensions of the First Amendment simultaneously.

The forum/basis for claim category helps us locate where Zubik fits into the larger schema of these cases.


Several of the most well-known free exercise cases (or establishment clause cases with free exercise dimensions) deal with academia.  These include Wisconsin v. Yoder, 406 U.S. 205 (1972), Abington School Dist. v. Schempp, 374 U.S. 203 (1963), and Lee v. Weisman, 505 U.S. 577 (1992).  Of the 127 cases I examined, 98 discussed or mentioned schools at some level.

Zubik falls closer to set of terms including “program,” “organization,” and “employees.” Although these are very pertinent in the free exercise context, it is also apparent that these are not the most prevalent issues that were raised in these cases over time.  Across these multiple categories, however, there are many ways to relate Zubik to greater free exercise context.

For a bit more depth I was also interested in how often the Religious Freedom Restoration Act (RFRA) was referenced in these cases.  As the above figure shows the acronym was mentioned 502 times in 11 of the 127 cases.  This placed it as the 367th most frequent term in the overall term frequency list.


Follow me on Twitter: @AdamSFeldman

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