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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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Faced with this uphill task, the solicitor general’s brief makes the key points under strict scrutiny’s analytic framework and does so in a presentable way. Little is said, however, about the wellspring of RFRA’s controlling standard. The brief passingly cites the fountainhead case, Sherbert v. Verner, only three times. Maybe they’re thinking if they ignore it, it’ll go away.

But that’s wishful thinking. Looming over any constitutionally based argument is what courts and lawyers call the “standard of review.” By its terms, RFRA expressly embraces the most challenging standard for the government to meet. The statute expressly points by name to Sherbert and Yoder as embodying the legal standard that courts are bound to apply.

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Unsurprisingly, the government and its myriad supporters are looking feverishly for a way to avoid stepped-up review. The government lawyers think they’ve found it in the way the Green family does business: Organized as a for-profit corporation, the vast Hobby Lobby empire extends nationwide and includes a Christian bookstore chain, Mardel. To the Obama administration, that’s the end of the case. Why? Because, in the government’s view, RFRA doesn’t extend its protections to for-profit corporations. After all, how can General Motors or Google be said to have “religious freedom?” It doesn’t compute.

But the argument has its own statutory problems. By its terms, RFRA applies to all “persons,” but leaves that pivotal term undefined. That doesn’t seem to be a congressional oversight: RFRA has a section setting out four definitions, but “person” is not among them.

Then what? Congress long ago provided for a default mechanism. It first did so in 1871, in what is known as the Dictionary Act. It is federal statutory law’s counterpart to “In the beginning . . . ” The authoritative definition of “person” expressly includes a corporation, with no distinction drawn between non-profits and profits. To a textualist, the case is over.

But there is a textual wrinkle, one that the government aggressively exploits. The Dictionary Act contains opt-out language: “unless the context suggests otherwise.” This applies, the government maintains, because of the nature of for-profits and religious freedom. As the solicitor general sees it, the two don’t connect, conceptually or practically.

The Hobby Lobby case may well turn on this very technical debate. If the Greens can convince a barebones majority of the Court that unlike General Motors or Google they — five individuals carrying on a family business under the umbrella of a closely held corporation — are directly and substantially affected in their free exercise of religion, then RFRA has to be met head-on by the solicitor general.

That won’t end well. The statutory text renders RFRA’s power nigh irresistible when a government places a substantial burden on religious liberty. If exit ramps are avoided and the Court squarely faces the language and structure of RFRA in all its might, Sherbert v. Verner should prevail. That relic of the Warren Court, which lives on in 2014 by virtue of the restorative acts of a virtually unanimous 103rd Congress, represents a great source of comfort for those who believe, and who believe that Caesar has once again demanded far more than he has the rightful power to command.

— Former U.S. solicitor general and circuit-court judge Ken Starr is president and chancellor of Baylor University.



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