Tuesday, January 28, 2014
The Christian Legal Society has filed an amicus brief in Hobby Lobby/Conestoga, written by Prof. Doug Laycock, that eviscerates the government's argument that the Religious Freedom Amendment (RFRA) does not apply to for-profit corporations. In surgical detail (as "eviscerate" connotes!), the brief shows that during the 1999-2000 debate over reenacting RFRA as applied to the states (after the Court had struck down that application), leaders of both sides took RFRA's plain, public meaning to be that it applied universally to all claims of substantial burdens on religious exercise, with no exclusion of claims by for-profit corporations. Liberal congressmen and civil-rights groups had crystallized their opposition to corporate religious-freedom claims against civil-rights laws, and so they wanted an amendment that would exclude such claims. The stalemate over this issue prevented RFRA's reenactment as applied to state laws-- but the statute has always remained applicable to federal laws and regulations. (The legislation that emerged from the 1999-2000 debate was the Religious Land Use and Institutionalized Persons Act, RLUIPA, which covers only zoning/landmarking cases and claims by state prisoners and other institutionalized persons. UPDATE: And the 1999-2000 debate led not only to RLUIPA, but to minor changes in RFRA' text that, among other things, stated that the statute covers "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." Thus, the 1999-2000 debate amended RFRA too and reinforced the universal reach of the term "exercise of religion.")
The brief explains cogently why this is powerful evidence (not questionable "post-enactment legislative history") confirming the plain public meaning of RFRA' text, which is that the "persons" who may claim rights of religious exercise under it include for-profit corporations--consistent with the general definition of "person" in the U.S. Code set forth by the Dictionary Act.
The CLS brief also overlaps with the Democrats for Life brief I just posted about, in arguing that "the tradition of protecting conscientious objectors Is especially broad and deep with respect to taking human life."