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The HHS Mandate Meets an Immovable Object
RFRA was written to be easily strong enough to favor Hobby Lobby.


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Presidential signing statements are typically dry as dust. Not so with the Religious Freedom Restoration Act of 1993, the landmark statute at issue in the closely watched Hobby Lobby case, to be argued in the Supreme Court on March 25.

During the first year of his two-term presidency, Bill Clinton waxed eloquent when signing that bill into law. The president forcefully warned of judicially created dangers to Americans’ religious freedom, addressing the nation not only in legal and constitutional terms but with reference to American culture more broadly:

Today this event assumes a more majestic quality because of our ability together to affirm the historic role that people of faith have played in the history of this country and the constitutional protections those who profess and express their faith have always demanded and cherished. 

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Invoking Stephen Carter’s then much-discussed book, The Culture of Disbelief, the still-new president reminded the nation that vigilance in defense of religious freedom was categorically imperative. The Supreme Court, he lamented, had inflicted a grievous wound on America’s first freedom in the case of Employment Division, Department of Human Resources of Oregon v. Smith.

There, the Court rejected the religious-freedom claims of two Native Americans who had lost their state-government jobs solely because they used peyote in their traditional worship celebration. The Oregon case contained not a hint of illicit trafficking or extra-sacramental abuse, but the Supreme Court majority was unmoved by the discharged employees’ claims that peyote was a sacrament in Native American worship.

The Smith Court laid down a bright-line rule: If a governmental law or regulation that infringes on religion is “neutral” and “generally applicable” to one and all — in effect, if the measure is not directly aimed at religious practices — then it is constitutionally permissible. The judiciary would no longer be in the business of carving out exemptions or creating exceptions to neutral laws of general applicability. If a faith community (or individual) wants an exemption, in other words, go lobby the politicians.

Cabining once-robust judicial power, the Smith Court went to some length to distinguish two landmark cases that had done exactly what the majority of justices now condemned as judicially out of bounds. The first, Sherbert v. Verner (decided in 1963), upheld the claim of a Seventh-day Adventist for state unemployment benefits when her employer fired her for being unwilling to work on the Sabbath. The second, Wisconsin v. Yoder (decided in 1972), provided a constitutionally based exemption for Old Amish parents seeking to halt public schooling once their students had finished the eighth grade.

Those two oft-cited cases had been on the books for decades. The heavens had not fallen, nor had a clamor arisen in legal or government circles for the cases to be reversed. The Oregon peyote case thus came as a constitutional bolt from the blue.

In response, Congress erupted in righteous indignation. The House was unanimous, the Senate nearly so (97–3), in passing the Religious Freedom Restoration Act in 1993. The idea was simple: Religious freedom would gain strong statutory protections, and the Supreme Court’s anti-liberty ruling in the sacramental-peyote case would be reversed. Congress and the president cheerfully collaborated to “restore” the body of judge-created law that had been deeply compromised, if not for all practical purposes interred, by the court.

In their zeal to restore religious freedom, however, the political branches had overlooked a basic lesson from Civics 101. In a constitutional republic, the Supreme Court is indeed supreme when it comes to saying what the Constitution means. That much has been clear since 1803, when Chief Justice John Marshall spoke for a unanimous Court in the iconic case of Marbury v. Madison. RFRA represented an insurrection, not a restoration, to the extent that Congress and the president sought to apply its mandate to states and local governments.



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