As the 2014 mid-term elections grind inexorably towards us, the concept of “nullification” has started to pop up with surprising frequency. As used in political circles, the term refers to the supposed ability of a state to nullify, or void, any federal law it finds too onerous or politically unacceptable. Most recently, Iowa’s Republican candidate for the US Senate, Joni Ernst, caused a stir by apparently advocating nullification to attendees of the Iowa Faith & Freedom Coalition.
“Bottom line is, as a US senator, why should we be passing laws that the states are considering nullifying?” Ernst asked. “I mean, that’s bottom line, is our legislators at the federal level should not be passing those laws.”
To be fair, the concept of nullification is woven through the American experience. The original Tea Party, after all, was little more than a physical nullification of the 1773 Tea Act, which Boston merchants and political agitators saw both as unfair trade competition and a backdoor attempt by the British Parliament to tax the colonists.
Emboldened by their success, and further angered by the so-called “Intolerable Acts” that followed, the colonists embarked on the ultimate nullification: revolution against the Crown. In the Declaration of Independence, Thomas Jefferson captured the fundamental spirit of nullification: “That whenever any Form of Government becomes destructive of these ends [Life, Liberty, and the Pursuit of Happiness], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
The concept of nullification lingers on in our criminal justice system as well. Although both grand and petit juries are reminded that they are required by oath to follow the law, juries have the inherent ability to refuse to do so if they feel the law is fundamentally unjust, that the government has acted illegally, or that the particular circumstances of the case merit leniency towards the defendant.
Given all that, it’s not terribly surprising that disgruntled social and religious conservatives have latched onto the idea of using nullification as a tool for reversing disappointing election results. We’ve been down this road before, of course; in the years leading up to the Civil War, pro-slavery states trumpeted nullification as a response to any effort by the federal government to outlaw slavery. That sentiment and the ruinous war that followed, as President Abraham Lincoln pointed out, called into question the very concept of an American union.
“Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in liberty, and dedicated to the proposition that ‘all men are created equal,’” Lincoln proclaimed over Gettysburg’s hallowed ground. “Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure.”
One of the more direct nullification efforts in recent times is taking place in Kansas, which adopted a law declaring that the state would refuse to enforce certain federal gun regulations. The law is being challenged in federal court by the Brady Campaign to Prevent Gun Violence, and US Attorney General Eric Holder has warned the state that the law is unconstitutional, citing the supremacy clause of Article VI of the US Constitution.
Short of armed insurrection, it is unlikely that a state can effectively pick and choose which federal laws it is willing to obey and/or enforce. Were that to occur, it would render meaningless the Civil War Amendments to the Constitution (most notably the Fourteenth Amendment), not to mention the half million or so lives that were lost in the battle over Jefferson’s declaration of equality.
Over the last few decades, a more subtle nullification threat to our union has arisen, aided and abetted by a misguided and increasingly conservative Supreme Court. Capitalizing on the Court’s unnecessarily expansive reading of the infringement clause of the First Amendment, religious conservatives are effectively nullifying federal laws that they claim impinge on the free exercise of their religion. This trend, if it continues, threatens to further Balkanize the country along sectarian lines.
The leading example, of course, is the Court’s recent 5-4 decision in the case of Burwell v. Hobby Lobby, in which the five conservative justices held that under the Religious Freedom Restoration Act (RFRA), a corporation is exempt from the provisions of a law which conflict with the religious beliefs of the corporation’s owners. The decision was limited to closely-held corporations and only applies in situations where the government has a less restrictive means of accomplishing a legitimate public policy goal.
In the case before the Court, Hobby Lobby and its owners protested a requirement under the Affordable Care Act that female employees be given access to certain contraceptives that the owners believe act as abortifacients. They challenged the requirement under RFRA and the free exercise clause of the First Amendment. The Supreme Court ultimately agreed, noting that RFRA requires strict scrutiny of laws that “substantially burden” a person’s exercise of his, her, or its (apparently) religion. In this case, the Court concluded that the government had already demonstrated that a less restrictive method of enforcement existed: Nonprofit organizations can file a form indicating their religious objection, and then the contraceptives are covered for free by insurers.
Hobby Lobby is merely the latest in a long but growing line of cases that carve out religious exceptions to otherwise neutral laws: anti-discrimination in hiring (Hosanna-Tabor Church v. EEOC); prohibition against hallucinogenic drugs (Gonzales v. O Centro Espírita Beneficente União do Vegetal); labor law (Thomas v. Review Bd.); and so on.
The Supreme Court should prevent the federal government (or the various states, for that matter) from either specifically targeting the practices of a particular religion or unnecessarily impeding their lawful exercise. But the fundamental flaw of Hobby Lobby and its potential progeny (putting aside the ludicrous concept of corporate personhood) is that it perverts the concept of “exercise.”
The ACA requirement that various types of birth control be available to women on employer-provided health care plans is a neutral law of general applicability. It does not require that any individual use such birth control if it contravenes his or her religious beliefs. The owners of Hobby Lobby are perfectly entitled to exercise their personal religious beliefs by using or not using birth control as they see fit. Their employees should have the same right.
It is tempting to put all the blame on the Court, and given the corporate personhood ruling in Citizens United, that may not be unjustified. But once corporate personhood was established, the outcome under RFRA was largely preordained. The real problem lies in the fact that two decades ago, at the height of the religious right’s activism (see The Court and the Cross), Congress imposed a standard of “strict scrutiny” for any otherwise neutral law that someone can claim substantially impacts his, her, or its religion.
Thanks to Hobby Lobby and a stunningly pro-business Court, RFRA is allowing corporations and nonprofits to do what some states would like to do but cannot: pick and choose which federal laws they will obey. The pendulum has tilted too far to the religious right, and needs to swing back, or we will not long endure as a secular union.
Frederick S. Lane is an author, attorney, educational consultant, expert witness, and lecturer who has appeared on “The Daily Show with Jon Stewart,” CNN, NBC, ABC, CBS, the BBC, and MSNBC. He has written seven books, including The Court and the Cross, American Privacy, and most recently Cybertraps for the Young (NTI Upstream, 2011).