Professor Marci A. Hamilton, Alliance for Justice, GUEST BLOG: The RFRA Black Box

There was a time when the Religious Freedom Restoration Act (RFRA), the law at the base of the Hobby Lobby andConestoga Wood Specialties contraception mandate cases at the Supreme Court, appeared shiny and noble.  It was all about our beloved American religious liberty.   As it turns out, though—and these cases have made clear—it is in fact a black box.

And who delivered this shiny black box to us?  Congress, which blindly trusted religious lobbyists—specifically the self-named Coalition for the Free Exercise of Religion—to be honest about religious liberty doctrine, the state of religious liberty across the country, and their true intentions if RFRA passed.  Yet, the Coalition was not forthcoming about any of these.

Congress leapt to be our religious savior by enacting RFRA, instead of asking the obvious question of the religious lobbyists: so what laws do you intend to break?

Members didn’t plumb the depths of the law in part because they were agog that religious groups and civil rights groups were joining forces.  Unfortunately, since the civil rights groups didn’t dig deep, either, the religious groups got a free ride like never before.  Finally, the truth is emerging for all to see:  Congress enacted a law that severely constrains every federal law in ways never before possible, and the only people who understood which laws were at risk were the religious lobbyists.

RFRA’s black box quality was central to the oral arguments in Hobby Lobby andConestoga Wood Specialties, which were heard together last week.  Justice Ginsburg asserted, quite reasonably, that it seemed odd that, “People from all sides of the political spectrum voted for” RFRA if Congress had intended the law to mean that for-profit corporations can trump the federal civil rights laws.  Similarly, Justice Kagan—who, as Deputy Director of the Domestic Policy Council for President Clinton, was involved in attempts to enact a new RFRA (now called the Religious Liberty Protection Act) in 1999, after the law was held unconstitutional as applied to the states in 1997—also expressed disbelief that RFRA could mean what Hobby Lobby and Conestoga Wood insisted it must mean.  Justice Kagan said, incredulously, that their “interpretation of [RFRA], would essentially subject the entire U.S. Code to the highest test in constitutional law.”

The Building of the Black Box        

First, the very title of the law—the Religious Freedom Restoration Act—is misleading.  It claims to be a “restoration” of something, but turns out to be a grab for new rights.  As many are acknowledging, there is an element in RFRA—a “less restrictive means” test—never before seen in religious liberty cases in the United States, and it is a game-changer.  Justice Scalia made it a point during oral argument to obtain agreement from both sides that this test was never part of the Court’s doctrine.  Agree they did, as they had to.

This newly invented element forces the government to prove that the law is the “least restrictive means” of governing for this religious believer.  It is, in fact, the next kin of sheer narcissism and the sort of solely self-centered right that the First Amendment has never observed and that our religiously diverse culture cannot peacefully sustain.

The good news is at least we have clarity: no one in the future should accept as true a statement that RFRA is simply restoring prior law, with its implicit premise that if it is the standard we have always had, it can’t hurt.  It’s not, and it does.

Second, when RFRA was passed not just once (1993), but twice (2000), the religious lobbyists tried to gin up a story of religious discrimination.  The actual legislative history shows, however, that RFRA’s passage was not about discrimination, but rather inconvenience.  For example, the religious lobbyists did not want to have to be burdened by ordinary burdens in the land use process.  But, as anyone who has ever built something from the ground up would say, who does?  Although Senators Kennedy and Hatch declared in a joint statement that RFRA was all about discrimination—and that one line has been good enough for lobbyists and judges—the truth of that statement it is not borne out in the legislative history, or, more importantly, recent United States history.

Now that the public understands that the very title is a lie, I hope that they will also take these claims of discrimination with a grain of salt.  If you were to actually read the legislative history, however, I would issue one caution.  The record does not include most of the objections raised from 1997-2000, e.g., by New York Mayor Giuliani or former Sen. Patrick Moynihan or the brilliant sociologist of religion, Mark Chaves.   Those were excluded, showing once again that RFRA’s enactment and transparency are not synonyms.

Third, and this is the element that is spotlighted by these cases: RFRA was motivated by religious organizations that embrace agendas deeply at odds with civil rights, to the detriment of women, homosexuals, and employees whose faith differs from their employer’s.   During the law’s enactment, as the Christian Legal Society’s (CLS) amicus brief in the Hobby Lobby case shows, there was a pact among religious lobbyists: I won’t agree to an exception that would hurt your practices so long as you don’t agree to any exceptions that hurt mine.  How did they accomplish this?  By refusing to talk about their own secret agendas to members of Congress or amongst themselves.  Solicitor General Donald Verrilli stated during oral arguments that it was inconceivable that “Congress meant to . . . to obliterate” Title VII’s distinction between religious corporations and non-religious corporations in passing RFRA.  I agree, but at the same time, the truth is that Congress had little idea what it was enacting.

You may wonder how the ACLU sat at the same table with the Christian Legal Society when RFRA was first passed.  That was made possible because the CLS was silent about its agenda, and the ACLU was, well, unfortunately misled.  The ACLU peeled off eventually, and now fights against the state RFRAs that are threatening same-sex couples—and against these for-profit employers trying to shut down women’s reproductive health coverage—but it is unfortunate they did not make this move much sooner, say as early as 1990.

What To Do

             It turns out that the RFRA black box is Pandora’s.  Congress has the power to close it, but only if it has the will to stand behind the United States Code.  One tack would be to enact exemptions to RFRA for specific federal laws.   As Chief Justice Roberts said in oral arguments last week, “if Congress feels as strongly about this as [the government suggests], they can always pass an exemption, an exception to RFRA.”

Yet, now that we know RFRA is based on false premises, hidden agendas, and fosters demands to discriminate, it seems daft to preserve it so we can be surprised yet again.   The smarter tack, in my view, would be wholesale repeal.  Let the First Amendment and the Justices do the job they were doing very well until RFRA shouldered them aside.

Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University.  Her next book, God vs. the Gavel: The Perils of Extreme Religious Liberty (Cambridge University Press), will be available later this spring.