Tuesday, January 28, 2014
Today is the filing deadline for amicus curiae briefs in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius. Yesterday, my co-counsel and brother filed an amici curiae brief that we co-authored with excellent lawyers at McGuireWoods on behalf of eleven Senators and four representatives who voted to enact RFRA in 1993 and remain in Congress today. The group of signatories is led by Senator Orrin Hatch (R-UT), a current member and former chairman of the Senate Judiciary Committee who shepherded RFRA through the Senate as the lead Republican sponsor together with Senator Ted Kennedy as the lead Democrat sponsor. The signatories also include the current and immediate past chairmen of the House Judiciary Committee (Rep. Bob Goodlatte and Rep. Lamar Smith).
As with any amicus brief in a case (actually two cases) that will attract many such briefs on both sides, it is important to have a distinctive offering that does not simply repeat the contentions of the party or parties being supported. In addition to emphasizing RFRA's blanket provision of a single (statutorily defeasible) standard for protecting the exercise of religion, our brief highlights RFRA's operation as a statutory standard that the government was required to implement together with the ACA when it was regulating. RFRA is sometimes thought to be nothing more than a liability rule to be enforced judicially. But RFRA is more than that. Absent a later statutory exclusion, RFRA governs the implementation of all federal law. This means that the Departments of Health & Human Services, Treasury, and Labor were obligated to follow RFRA when they crafted their exemption and accommodation arrangements for the contraceptives coverage mandate. As the brief details, however, the regulatory process failed to take adequate account of RFRA, which came into the regulatory picture only as a result of the "vicissitudes of political controversy" that RFRA was designed to avoid. The government's sidelining of RFRA can be seen in the rules' reliance, first, on state-law models, and later on Title VII's narrower religious employer provision, when designing their exemption and accommodation arrangements. The reliance on state-law models was particularly inapt given that RFRA does not apply to state law.