If you read only one amicus brief in the Hobby Lobby case…

Read this brief authored by Douglas Laycock on behalf of the Christian Legal Society and several other groups. Professor Laycock was right in the center of the legislative debates over the meaning of RFRA in the 1990s. In exploring the meaning of RFRA and its application, the brief describes those debates in very helpful detail, and it also discusses the legislative history of the Religious Liberty Protection Act, a statute that was in the offing (but ultimately was never passed, though portions of it made their way into the Religious Land Use and Institutionalized Persons Act, and portions were used to strengthen RFRA) after the Supreme Court struck down RFRA as applied against the states as in excess of Congress’s enforcement powers under section 5 of the 14th Amendment. Laycock demonstrates that Congress clearly intended RFRA (as well as RLPA) to apply to for-profit corporations, and reflected that intention in the words of the statute. There were many special interests that desired exemptions from RFRA. Those exemptions were rejected.

The Hobby Lobby and Conestoga Wood cases are, at bottom and after the swirling political fog is blown away, about the meaning of a statute. Professor Laycock’s brief is an important contribution in ascertaining that meaning. Here is the summary of the argument:

The Religious Freedom Restoration Act provides universal coverage. It applies to “all” federal law and to “all” cases where the free exercise of religion is substantially burdened.

The legislative history confirms the universality of the statutory text. The sponsors resisted all efforts to add exceptions to coverage. A definition in an early version of the bill, limiting coverage to “natural persons” and religious organizations, was eliminated in all later drafts.

After this Court invalidated RFRA as applied to the states, Congress sought to re-enact RFRA’s standard, in substantively identical language, for application to cases that could be reached under the Commerce and Spending Clauses. The debates on this bill, the Religious Liberty Protection Act (RLPA), reveal the public meaning of the nearly identical language in RFRA. The RLPA debate is highly probative because it was a serious fight on a live issue. It was not in any sense an attempt to make post enactment legislative history about RFRA, but it clearly demonstrates the public meaning of RFRA’s language.

RLPA was delayed for more than a year by demands for a civil-rights exception. This debate culminated in the Nadler Amendment, which would have prevented all but the very smallest businesses from invoking RLPA in response to civil-rights claims. In the debate on the Nadler Amendment, both sides agreed that the language copied from RFRA protected corporations. One side thought that desirable; the other side thought it desirable in some cases but objectionable in civil-rights cases. But there was no disagreement on what the language of RFRA and RLPA meant. The debate, conducted by the leaders on both sides, was extensive and unambiguous.

RLPA was never enacted, but neither was RFRA’s coverage reduced. In the wake of this debate, Congress amended the relevant language of RFRA to further strengthen its protections.

The claims in these cases are clearly covered by the public meaning revealed in RFRA’s text and history and more specifically in the RLPA debates. Apart from civil-rights claims, both sides recognized the need to cover incorporated religious businesses (Mardel) and corporations with religious owners where regulation of the corporation would substantially burden the owners’ exercise of religion (Hobby Lobby and Conestoga Wood).

The RLPA debate also confirms that RFRA applies to suits by private plaintiffs. The whole debate was about religious defenses to claims by individuals alleging discrimination.

Protecting for-profit corporations is consistent with larger traditions of religious liberty. State and federal conscience legislation has often protected for profit businesses. The most relevant example here is the widely enacted conscience legislation with respect to abortion.

The plaintiffs in these cases object only to drugs and devices believed to sometimes cause abortions. And the protection for conscientious refusals to kill is especially well settled in our tradition.

Our moral tradition holds corporate owners and leaders morally responsible for the wrongdoing of their corporations. The government often imposes criminal responsibility on individuals for corporate wrongdoing. That it has not done so in the Affordable Care Act does not change the basic point; it is entirely normative for the individual plaintiffs to feel morally responsible for the acts of the corporations they control.

Finally, excluding religious minorities from significant businesses or occupations is a time honored means of religious persecution, well known to the Founders. If the individual plaintiffs refuse to violate their conscience, the government would exclude them from any business that grows to fifty employees and to incorporated status. Such exclusions must be covered by the Free Exercise Clause, and when accomplished by allegedly neutral and generally applicable laws, by RFRA.

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