July 7, 2014
For those trying to make sense of the Supreme Court’s decision interpreting the Religious Freedom Restoration Act (“RFRA”), in Burwell v. Hobby Lobby, I thought it might be helpful to provide a translation dictionary. Little about RFRA or the decision is apparent on the surface, and providing English translations for both the statute and the Supreme Court’s opinion(s) should help Americans assess the issues more accurately.
1. Restoration: this term in the title of the statute means, in English, transformation. That statute did not restore a pre-existing First Amendment standard (despite Justice Ruth Bader Ginsburg dissent’s attempt to say so), but rather enacted a new, more religion-friendly standard (as the majority states), which religious entities had been attempting to insert into the doctrine in preceding cases, without success.
2. Freedom: another term in the title of the statute, “freedom,” has undergone an evolution in meaning. When enacted in 1993, its meaning was opaque. Its proponents asserted publicly that it meant the freedom for Orthodox Jews and the Hmong to avoid autopsies, which directly violate their beliefs. As events unfolded since, it has become clear that a much closer synonym is “discrimination.” RFRA’s most ardent proponents are devoted to discriminating against those who don’t hold their beliefs, women, and homosexuals. They also use the term “liberty” as a “synonym” for “freedom,” but again, RFRA’s most well-financed proponents are motivated to back “liberty” most to attack the three categories named here.
3. Powerless: RFRA was passed under the illusion that religious entities are powerless in the legislative process, to justify RFRA’s transformation of free exercise rights in such a way that believers obtained rights never before obtained. In fact, that term, in this context, means precisely its opposite. The groups donning this political powerless posture obtained RFRA, for godssake.
4. Narrow: the mantra of the majority and RFRA’s supporters following the Hobby Lobby decision was that the decision was “narrow.” Again, the term, in this context, means precisely its opposite. Never before has a for-profit corporation obtained the right to trump the federal civil rights laws by virtue of the beliefs of its owners; nor has any believer obtained an exemption from a law where the burden was so indirect and attenuated.
5. Abortifacient: this term was used by Hobby Lobby and its fellow for-profit corporation in the case, Conestoga Woods Specialties, to describe emergency contraception. In English, and under medical science, the medications that were described as abortifacients are not abortifacients at all. Thus, the proper definition of this term in English is “not abortifacient.”
6. Unanimous: in English, this term–often incorrectly ascribed to RFRA by the press and courts that do not do their homework–actually means “unanimous consent.” RFRA was never passed unanimously, as that term is defined in English. “Unanimous consent” is a procedure in Congress whereby leadership calls a vote, nobody is there and there is no roll call vote. When RFRA was first passed in 1993, it was passed by unanimous consent in the House and 97-3 in the Senate. When it was passed in 2000, both Houses were split, but leadership shoved it through under the “unanimous consent” procedure after opponents had left for the summer break. Do not fall for this typical trick by RFRA supporters, for whom the simple truth is often the equivalent of garlic to a vampire.
7. Substantial Burden: This is the burden that a believer must satisfy to obtain the extreme standard established by RFRA. After the Hobby Lobby decision, “substantial” would mean attenuated, under ordinary English usage. But the Court goes to great pains to indicate that the decision is very “narrow,” (see above), which, if true, would mean that only for-profit corporations that believe women should not use emergency contraception can establish a “substantial burden” by showing a mere attenuated burden on their beliefs. For everyone else, “substantial” still means “substantial.” This is one of those evolving meanings that justify the existence of new editions of dictionaries.
8. Compelling Interest: This is a portion of the burden placed on the government trying to enforce its laws by RFRA. When RFRA’s proponents are challenged to explain how its extreme standard works in practice, they typically invoke this term as though it is the full burden on the government, without reference to the more extreme part of the standard, next. In English, compelling interest does not mean compelling interest and least restrictive means. Proving that nothing in this universe is totally predictable, the Hobby Lobby majority assumed that women have a compelling interest in having contraception covered, but treated the issue like a hot potato and instead spent most of its analysis on the least restrictive means analysis.
9. Least Restrictive Means: In English, this is the most onerous standard in all of constitutional law, and has never been adopted by the Supreme Court to interpret the Free Exercise Clause, despite many attempts by those like the Church of Lukumi Babalu Aye in the one Supreme Court case involving religious discrimination and decided in 1993, months before RFRA was enacted. Also in English, most believers, including Hobby Lobby, mean by this term that anyone should have to bear the burden of the law’s requirements other than them, whether it is the government or those burdened by the believer’s demands, like Hobby Lobby’s employees. For the Court, this standard also means it holds the power to act as a super-legislature with the power to second-guess every legislative and executive choice. Under ordinary English usage, this makes this conservative Court happily liberal, proving once again, that meanings in the RFRA universe have a tendency to slide to their opposites.
10. Pandora’s Box. In the RFRA context, this term means exactly what it says.